Civil Rights

In yesterday’s commentary on the Trayvon Martin decision, I stated in strong terms that I have no doubt that the outcome of this trial would have been different with an African-American defendant.  This comment, more than any other in the 1400 word essay, drew reader attention and at times criticism.

People who believe this case had nothing to do with race need to wake up and smell the coffee – this case had EVERYTHING to do with race.  There are people – some with good intentions – who believe that somehow by ignoring the racial dynamic we can move on from a national history steeped in racism from its founding to its dealings with Native Americans, its slavery and post-slavery saga to the present day.

“The U.S. Supreme Court’s June 26 decision in Hollingsworth v. Perry did not rule on Proposition 8’s constitutionality, and the district court’s 2010 injunction does not apply statewide.”  That is the view of a group called Alliance Defending Freedom, which filed a petition on Friday to ask the California Supreme Court to order the state’s county clerks to enforce the state’s marriage amendment.

“Our current lawsuit asks the California State Supreme Court to affirm and enforce the rule of law – declaring that in light of the Supreme Court’s decision not to address the validity of Prop 8, that constitutional amendment remains the voter-approved law of the land,” the group said in a statement Friday.

This is the column that I really do not want to write, but sometimes in this business, you have to do things you don’t want to do.  You see, 11 years ago today, I made the best decision of my life – I married the love of my life, Cecilia.  Little did I realize what the bonds of marriage would bring in the next 11 years.

Last night, I took my family to our favorite restaurant in Mendocino, Ravens’, out of cellular range.  When we got back into cellular range, I got a bevy of alerts on the acquittal of George Zimmerman.  I spent an hour or so reading my Facebook and Twitter feeds – anger and outrage.  Some people were resigned, some were ready to take up action.

By Cecillia Wang, ACLU

Last month, a U.S. District Court in Phoenix issued a 142-page decision against Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) in Ortega Melendres v. Arpaio.

After  a three-week trial, the court found that MCSO had an unconstitutional policy of targeting Latinos for traffic stops and of detaining Latinos based on nothing more than a suspicion of being undocumented immigrants.

“It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California’s voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal ‘standing’ to defend it in federal court, even when the State Governor and Attorney General failed to defend,” UC Davis law professor Vikram Amar writes in an article published in Verdict this week.

His article argues that the Supreme Court could have found a way to have “avoided unnecessary damage to the initiative device,” even as he believes it somewhat reasonable that the court find a “principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage.”  He simply felt that the court needed to explore alternatives ways to do so.

County Clerk Describes the Long and Yet Rapid Road from Protest to Legalized Marriage – It was February of 2007, more than 18 months before voters would pass Prop 8 banning same-sex marriage, when Yolo County Clerk Freddie Oakley said she was frustrated with the system and decided to do her own protest.

“I had already been county clerk for a number of years and I took it upon myself to be the person who addresses folks who came to demonstrate on Valentine’s Day,” Freddie Oakley recounted on Friday, noting that most county clerks would simply hide away in their offices rather than face the protesters.

In an interview with Yolo County Clerk Freddie Oakley that will be run on Monday, she told the Vanguard on Friday morning that she expected the stay to be lifted within 23 days.  Little did she realize that just a few hours later, the Ninth Circuit Court of Appeals would lift the stay on same-sex marriages just days after the court declined the appeal based on a lack of standing.

In a single line, “The stay in the above matter is dissolved effective immediately,” the court effectively removed the remaining barriers to legal, same-sex marriages in California.

There has been a lot of talk following the Supreme Court ruling on the Prop 8 case about the issue of standing.  Some have suggested that Governor Jerry Brown screwed up by refusing to defend Prop 8 (along with Kamala Harris, the Attorney General).  My take on this issue is that the Supreme Court used the issue of the lack of standing to cop out of ruling on the broader question – that of constitutionality of bans on gay marriage as a violation of equal protection laws.

Peter Scheer, whose work with the First Amendment Coalition I admire, writes, “While I take no pleasure in saying ‘I told you so,’ this outcome, resulting from a political miscalculation by Jerry Brown, was predictable and predicted.”

Court Sidesteps Broader Issue of Constitutionality in Prop 8: In the end, the court narrowly struck down DOMA 5-4 while it punted on the broader question of Prop 8’s constitutionality and simply argued that defenders lacked standing to back the 2008 Constitutional Amendment in California.

In striking down the Defense of Marriage Act, Justice Anthony Kennedy wrote the majority opinion joined by the four liberal justices.

In the 1990s, it appeared that a conservative tide was moving through on social issues.  In 1994, California overwhelmingly passed Prop 187, adding severe restrictions on benefits to illegal immigrants and their children.  In 1996, the state passed Prop 209, ending affirmative action in California.  And the state also passed a proposition banning gay marriage, which was followed by federal legislation like DOMA.

Even the much ballyhooed “Don’t Ask, Don’t Tell Policy” was, at best, a compromise on gays in the military.

by Yolo County ACLU, et al

We, the undersigned Davis community groups, seek to restore our democracy by speaking out against Section 1021(b)(2) of the National Defense Authorization Act for fiscal year 2012, which subjects U.S. citizens to military detention, without trial, until the “end of hostilities,” for “substantially” supporting members of al-Qaida, the Taliban and “associated forces,” or “directly” supporting hostilities “in aid of such enemy forces.”

This sweeping legislation is now found in Public Law 112-81. Since the “end of hostilities” in the war against terror may never be decisive, there may be no end to detention for those who come under these vague provisions.

By Patrick C. Toomey

The ACLU and Yale Law School’s Media Freedom and Information Clinic filed a motion today with the Foreign Intelligence Surveillance Court (FISC), seeking the release of secret court opinions that permit the government to acquire Americans’ phone records en masse. The public has a right to know the legal justification for the government’s sweeping surveillance-but, until now, those judicial opinions have remained a heavily guarded secret.

The ACLU filed its motion on the heels of last week’s disclosure of an order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to turn over call details for every domestic and international phone call placed on its network during a three-month period. Since then, media reports and statements by members of the congressional intelligence committees have made clear that this order belongs to a much larger surveillance program-covering all the major telephone companies-that has been in existence for the past seven years.

This week, two seemingly unrelated stories have continued on a national level.  One is a controversial 5-4 decision by the US Supreme Court, and the other is the still-burgeoning “scandal” which shows the Executive Branch, the NSA (National Security Agency), the FBI, and other agencies broadly and vastly increasing their surveillance on private citizens.

As Nothern California ACLU Staff Attorney Michael Risher wrote this week, “The Supreme Court’s 5-4 decision upholding Maryland’s arrestee DNA testing law is a serious blow to genetic privacy. The ruling allows the police to seize the DNA of innocent Americans who have never been convicted of any sort of crime, without a search warrant.”

I have read a lot of deadpanning of the Affordable Care Act before the system has even been implemented.  Truth be told, it was not my favored approach.  I have no idea if it will work.  But I would like to see it fail before we scrap it.

I suspect that many of the people defending the current system, or at least lamenting the new system, have never been in a situation where they have had to deal with health care without medical insurance.

Nearly 50 years ago, as President Lyndon Johnson pushed through the Civil Rights Act, he remarked to Bill Moyers, “We just delivered the South to the Republican Party for a long time to come.”  It was a statement that proved correct.

In fact, the Democrats went through a period of time when they not only slowly lost over the south to the Republicans over the course of the next thirty years, but were completely non-competitive – with the exception of 1976 – in Presidential elections until 1992.

by Peter Scheer

The Justice Department has been getting hammered in (and by) the press over a leak investigation involving the seizure of emails from the personal gmail account of James Rosen, a reporter for Fox News. The criticism has focused on the revelation, contained in a 2010 FBI affidavit used to obtain a search warrant, that the government then viewed Rosen not merely as a witness, someone who possessed evidence about the source of a national security leak, but as an indictable law-breaker.

Rosen’s source, according to the affidavit, was a government contractor who allegedly gave Rosen classified information about North Korea’s nuclear program. The Fox reporter’s crime: soliciting the information (aka doing his job as a journalist). The FBI affidavit claimed that, by aggressively soliciting a leak of classified information, Rosen had “aided, abetted or conspired” with his source in violating the “Unauthorized Disclosure of National Defense Information” statute (18 USC section 793).

This week I got into an interesting text exchange from an old friend challenging me on Obama’s less than acceptable record on civil liberties.  The problem that my friend had is that I largely agree with him on the President’s record on civil liberties.  However, I do not see the scandal on Benghazi or even the IRS.

The backdrop of Obama’s presidency is the eight years of the Bush administration, which is probably the worst black stain on America’s liberties since the 1960s, at least.  You have, at best, the questionable use of intelligence to plunge us into a costly, destructive, and needless war in Iraq, the use of torture, indefinite detention, the Patriot Act, wiretapping, and so on.

Perhaps it is the long and destructive decade in the war on terror, but there is a marked shift in public opinion.  Pollsters note that, following the 1995 bombing in Oklahoma City and the 9/11 attacks on the World Trade Center and the Pentagon, the public responded to those attacks with a willingness to give up liberties in exchange for security measures.

Since then we have seen wiretapping, indefinite detentions, and of course the decade-long wars in Afghanistan and Iraq.  In the wake of the most recent “terrorist” attack on the Boston Marathon, the public has responded differently.

A look at the Public Safety Exception to Miranda – It was a long and traumatic week for the country last week – a week that began with the tragic bombings and ended with the dramatic capture of 19-year-old Dzhokhar Tsarnaev.  Once captured, alive but badly injured, the question turned to how to prosecute the US citizen.

Quickly throwing gasoline on the already burning fire was South Carolina Republican Senator Lindsey Graham, who tweeted on Friday night that the alleged bomber should be denied his Miranda rights.

Democrats in Washington believe they have the 60 votes they need to proceed to a debate on gun control legislation, after a number of Republicans agreed not to support a filibuster following a deal on background checks for gun purchases being announced on Wednesday by Republican Senator Pat Toomey (Pennsylvania) and Democrat Joe Manchin (West Virginia).

According to The Hill, “The proposal would expand background checks to cover all sales at gun shows and over the Internet. Those background checks would have to be accompanied by records proving to law enforcement officials they took place.”