equal protection

A Break from Umpire Analogies?

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].
 

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Equal Protection Under Attack: Doe v. Vermilion Parish School Board

Last week, People for the American Way Foundation signed on to an amicus brief urging the Fifth Circuit Court of Appeals to overturn a lower court’s decision allowing a Louisiana middle school to segregate classrooms by sex. The amicus brief, led by the National Women’s Law Center, argued that sex-segregated classrooms are harmful to members of both sexes and violate the Fourteenth Amendment’s Equal Protection Clause.

Parents of the Rene A. Rost Middle School were informed in 2009 that classes for the school would be segregated by sex for the coming fall semester. A parent whose children were placed in sex-segregated classes without receiving constitutionally mandated coeducational options objected and was told that because the coed classes had already been filled, the only option left for one of her daughters was a special needs class. Represented by the ACLU, the parent sued and the trial court dismissed the case by wrongly shifting the burden of proof, requiring the victim to prove discrimination by demonstrating an “intent to harm” - a new standard that is almost impossible to meet and not recognized by the Supreme Court.

As the Supreme Court held in its 1996 decision requiring the Virginia Military Institute to admit women, for a state to permissibly classify on the basis of sex, it “must carry the burden of showing an exceedingly persuasive justification for the classification.” Additionally, the state must not “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Simply put, the Court has found that a state must have a very good reason before it decides to discriminate on the basis of sex.

NWLC’s brief cites evidence that suggests a total lack of adequate justification for the school’s policy, both from a legal and practical perspective, specifically a flawed study performed by Rost Middle School’s principal. Simply put, if the Fifth Circuit were to uphold the District Court’s decision, it would ignore almost 30 years of settled Equal Protection law in order to endorse a discriminatory policy that is harmful to all students regardless of gender.
 

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On Ellis Island, African American Ministers Leadership Council Are First to Sign Immigration Reform Covenant

Members of the African American Ministers Leadership Council and African American Ministers in Action gathered on Ellis Island to sign an immigration reform covenant.

On Wednesday, members of People For the American Way Foundation’s African American Ministers Leadership Council (AAMLC) and African American Ministers In Action (AAMIA) gathered on Ellis Island to pledge their unified support for a dignified, just, and tolerant approach to reforming the country’s immigration laws. The ministers, from five states and diverse denominations, were the first to sign a multi-faith covenant calling for “immigration dialogue and reform that will inspire hope, unite families, secure borders, ensure dignity and provide a legal avenue for all of God’s children working and desiring to reside in this country to drink from the well of justice and equal protection under the law.”


The covenant, which lays out seven principles for a respectful immigration reform debate, will be circulated among faith leaders of diverse traditions and ethnicities across the United States.

“We believe immigration reform is important for this nation. As faith leaders from various faith traditions, we stand united with one message and that is a message of love,” said Leslie Watson Malachi, director of African American Religious Affairs.

Watson Malachi put together the covenant in response to what she called the “increasingly nasty and divisive political and social tone of the immigration debate.”

Rev. Robert Shine

“For years, we have witnessed rhetoric around immigration reform that is deceptive, harmful, and pits communities against each other,” she said. “What took place in Arizona last month, when the state essentially legalized racial profiling in the name of immigration reform, demonstrated the mean-spirited, inhospitable atmosphere that is moving across state lines. This covenant is a statement that faith leaders will reclaim civility, lead a genuine, compassionate conversation, and not stand for racially divisive tactics that undermine the dignity of human beings.”

Members of the AAMLC were quick to sign on.

“We are concerned about all people, from all walks of life, all backgrounds, all races, all nationalities, ethnic origins, etc.,” said Reverend Melvin Wilson of St. Luke AME Church in New York, one of the original signers, “But the tone of the current discussion of immigration has been so negative, so divisive, we are just not going to sit idly by and let the talking heads speak without providing a counter-voice.”

Rev. Patrick Young signs the covenant as Rev. Dr. E. Gail Anderson Holness looks on.

“To sign this covenant is important for multiple reasons,” said Reverend Byron Williams, of Resurrection Church in Oakland, California, who was among the first leaders to add his name to the document. “First of all, it’s important on the issues of equality, and justice, and fairness and dignity. But it also makes an important statement that we have African American pastors coming together. Our ancestry does not take us by Ellis Island, but the concept of liberty is one that’s as deep in our community as it is for anyone that’s come to these shores looking for a better life. It’s those deeply held values of liberty, justice and fairness that are the bedrock of American principles.”

Watson Malachi plans to continue promoting the messages of unity and dignity through education and awareness efforts that include informative dialogue sessions, roundtable conversations with faith leaders from African, Caribbean, Latino, African American and other communities.

The full text of the covenant can be found here.

People For’s report on divisive and dishonest rhetoric in the debate on immigration reform is here.
 

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Two Must-Read Op-Eds on the Stevens Vacancy and What This Court Fight Should Be About

In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.

We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.

Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

Read the whole thing here >

Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.

Conason writes:

What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...

Click here to read the whole piece >

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Judging, Judges and Prop 8

Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.

Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.

In the end, Marcus writes,

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.

Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”

“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.

"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?

“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”

Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”

Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?

The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”

What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?

In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.

The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.

This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.

Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.

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Prop 8 Case Goes to Trial

Anyone interested in equal rights for all Americans might want to pay attention to the trial starting today in San Francisco. In the case, superstar lawyers David Boies and Ted Olson are arguing that Prop 8 violates the due process and equal protection clauses of the Constitution. They’re right, of course, but the trial is expected to last for weeks and appeals may well go on for years.

For now, though, you’ll be limited to media reports about what goes on in the courtroom. Judge Vaughn R. Walker, who is hearing the case, had ruled that video of the proceedings would be made accessible through YouTube, but this morning the U.S. Supreme Court blocked the video—for now. Their injunction only lasts until Wednesday, by which time they’ll (presumably) make a more final decision.
 

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Hate Crimes Legislation One Step Closer to Becoming Law

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.

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Bishop Harry Jackson Challenges DC Board’s Decision to Forego Same-Sex Marriage Referendum

Not that this comes as a surprise to anyone, but Bishop Harry Jackson and other opponents of same-sex marriage have filed a lawsuit here in DC hoping to get a referendum on the ballot on whether to recognize same-sex marriages performed in other jurisdictions.

The civil suit against the District's Board of Elections and Ethics asks Judge Judith E. Retchin to overturn an election board ruling Monday that blocked a proposal to put the issue before the voters. Citing a District election law prohibiting votes on matters covered under the 1977 Human Rights Act, which outlaws discrimination against gay men, lesbians and other minority groups, the board said that a referendum would "authorize discrimination."

The plaintiffs asked for an expedited hearing. If the court or Congress does not intervene, recognition of same-sex marriages performed elsewhere will become law early next month, at the end of the required congressional review period.

"We are not going to sit by and allow an unelected board of bureaucrats to deny voters their rightful say on this issue and, by their action, allow the institution of marriage and the entire structure of our society to be radically redefined," said Bishop Harry Jackson, senior pastor of Hope Christian Church in Beltsville and one of seven District residents who are plaintiffs in the suit.

Bishop Harry Jackson is touted in the Washington Post’s article as “one of seven District residents who are plaintiffs in the suit,” but Lou Chibbarro of The Washington Blade has found evidence that suggests otherwise.

For more information about Jackson’s crusade across the country to strip LGBT people of the equal protection under the law, see People For the American Way Foundation’s report Point Man for the Wedge Strategy.


 

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Proposition 8: Open Season on Minorities?

We’re all waiting to see how the California Supreme Court rules on the constitutionality of Proposition 8. Equality advocates argue that stripping lesbian and gay people of the right to marry was what California law calls a revision: a constitutional change so fundamental that it should not have been allowed on the ballot without first being approved by a constitutional convention or a legislative supermajority.

In contrast, Proposition 8’s far right supporters claim it was a constitutional amendment: a non-fundamental change that properly went directly to the voters. Supporters of Prop 8 have also loudly condemned equality advocates for going to court after the election, saying that such a move is illegitimate because the people have already spoken.

The Right is wrong on both counts.

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Maine Becomes Latest State to Make Gay Marriages Legal

Today, Maine became the latest state to affirm the freedom to marry for same-sex couples, joining Massachusetts, Connecticut, Iowa, and Vermont when Gov. John Baldacci signed into law LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom. People For the American Way applauds Gov. Baldacci for recognizing that this is about fairness and equal protection under the law for all citizens of Maine. In a public statement, Gov. Baldacci said:

“In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.

“Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’

“This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State.

“It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government.”

This news comes a day after the D.C. Council voted 12-1 to recognize same-sex marriages performed in other states. Congratulations to the Maine Legislature and all those who are working hard to make fairness and equality for same-sex couples in Maine a reality.

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Iowa Marriage Decision Recognizes Religious-Civil Distinction

People For the American Way Foundation's recent Right Wing Watch In Focus report documented the deceptive ways that Religious Right leaders blur the distinction between civil and religious marriage in order to convince Americans that marriage equality is a threat to religious liberty. Today's thrilling unanimous Iowa Supreme Court decision that it is unconstitutional to deny marriage to same-sex couples in the state included a powerful and respectful section on the same topic. Here's how it concludes:

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution.

The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

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Do elephants really never forget?

From today's Politico:

McConnell said that Coleman’s team seems to have been laying the groundwork for a federal appeals challenge by citing the 2000 Supreme Court case in Bush v. Gore, which ended the Florida recount. McConnell argued that the equal protection clause of the Constitution ensures that each county should use similar standards in counting its ballots, which the Coleman campaign asserts was not done in Minnesota.

"We all remember Bush v. Gore," McConnell said.

I am not sure Senator McConnell remembers.

It's interesting that McConnell is willing to let an election -- which has already had a recount -- hang in the air for two months. After all, less than a month after the 2000 election, McConnell was already demanding that Al Gore concede to George W. Bush. McConnell's comments to the Lexington Herald-Leader on Nov. 27, 2000:

We've had a count, we've had a recount, we've had a recount of the recount. It's been three weeks since the election and it's time for Gore to be a statesman and give it up.

But do not worry, others have not forgotten, Senator McConnell.

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Supreme Court Narrows Protections for Public Employees

In a 6-3 ruling on June 9, the Supreme Court made it harder for public employees who are victims of arbitrary or malicious firings to obtain justice. In doing so, the Court, in an opinion by Chief Justice Roberts, rejected an approach followed by nine federal appellate courts that had allowed a public employee who is arbitrarily treated differently from other similarly situated employees to bring an equal protection claim under the 14th Amendment, even if that employee had not been discriminated against because of membership in a particular class (e.g., African Americans or women).

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