ACSBlog: The Blog of the American Constitution Society

Michigan’s Supreme Court held 5-2 that Michigan’s constitutional ban on same sex marriages precludes local government and state universities from providing health insurance to the partners of gay employees, affirming a local court decision, the Associated Press reported.

Mildred Loving (formerly Jeter), whose arrest in Virginia for marrying Richard Loving ultimately resulted in the 1967 Supreme Court decision in Loving v. Virginia, has died, according to the Free-Lance Star. After they were married in 1958, the couple was arrested for violating Virginia's "Racial Integrity Act," which made interracial marriages illegal. Their one-year sentence was suspended, provided they leave the state.

Several years later, after passage of the Civil Rights Act of 1964, the couple brought suit, with the assistance of the ACLU. In 1967, the Supreme Court held that the law violated the equal protection clause of the 14th Amendment. They had three children.

by Craig Gurian, Project Manager, Fair Housing For All

People commonly bemoan the segregated state of our schools, but seldom relate that educational segregation to its fundamental cause: the profound and continuing residential segregation that exists north and south, east and west.

Indeed, the cause of fair housing has never commanded a sustained commitment on any level of government, nor has it ever attracted a robust bar.  Forty years after the passage of the Fair Housing Act, the number of fair housing lawyers remains remarkably small, and those lawyers who do practice in the area have had no organizational voice of their own.

We have just created Fair Housing for All in the hopes of: (1) strengthening and enlarging the ranks of fair housing attorneys; of (2) providing a voice for those attorneys; (3) fighting for legislative change in the service of fair housing on whatever level of government seems congenial; and (4) improving our ability to work with and the fair housing organizations and others on the front lines of the struggle for fair housing.

We invite you to examine our statement of principles and a list of our tentative legislative priorities, and then to join with us as we work to reclaim the term “community” as one that signals genuine inclusion and the crossing of racial, neighborhood and other artificial dividing lines.

Yesterday, the White House threatened to veto legislation that "would make it easier for victims of discrimination to sue their employers over unequal pay," the Washington Post reported. The legislation, known as the Lilly Ledbetter Fair Pay Act of 2007, seeks to overturn a 5-4 U.S. Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber. In that case, the Court narrowly interpreted employment discrimination law to prohibit a lawsuit for gender-based pay discrimination unless the discrimination occurred within 180 days of the plaintiff's filing suit, regardless of when she found out about the discrimination. A Congressional Research Service Report explained the issues at play in Ledbetter:

In Ledbetter, the female plaintiff alleged that past sex discrimination had resulted in lower pay increases and that these past pay decisions continued to affect the amount of her pay throughout her employment, resulting in a significant pay disparity between her and her male colleagues by the end of her nearly twenty year career. Under Title VII, a plaintiff is required to file suit within 180 days after an alleged unlawful employment practice has occurred. Although the plaintiff in Ledbetter argued that each paycheck she received constituted a new violation of the statute and therefore reset the clock with regard to filing a claim, the Court rejected this argument, reasoning that even if employees suffer continuing effects from past discrimination, their claims are time barred unless filed within the specified number of days of the original discriminatory act.

Catherine Fisk, Duke University professor of law, previewed the Ledbetter case in this blog post. Fatima Goss Graves, Senior Counsel at the National Women's Law Center, provided additional analysis of the case and the legislation before Congress. The Post also ran this editorial. ACS explored three other employment discrimination cases before the Court in this press briefing from February 2008.

Tuesday is "Equal Pay Day": the day when an average woman’s wages finally catch up to the wages earned the year before by the average man. Earlier this month, Fatima Goss Graves, senior counsel at the National Women's Law Center, shared her wish for Equal Pay Day.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals reinstated a lawsuit against Iona College filed by a former assistant basketball coach who claimed he was fired because he was married to an African American woman.

The 2nd Circuit ruled in Holcomb v. Iona College that Title VII of the Civil Rights Act of 1964 may be violated where a white man is fired for his association with another person of another race; other courts have held such a claim could not survive if the plaintiff did not allege discrimination motivated by the plaintiff's race. It is the first such application of that law in this circuit.

Memories of Dr. Martin Luther King, Jr. are recalled by ACS Board of Directors member and former Assistant Attorney General Roger Wilkins and Pulitzer Prize winning historian Taylor Branch. Wilkins spoke about Dr. King's efforts to convert Chicago gang members to non-violence, while Branch spoke of King's dedication to causes far broader than desegregation--his passion for ending the "triple associated scourges of poverty, racism and war."  Video is available at this link.

Watch Dr. King's "I Have A Dream" speech.

by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center

April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.

I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.

In an overview piece, Helen O'Neill of the Associated Press discussed the 100-plus foreign born U.S. military members who earned U.S. citizenship by dying in Iraq.

According to the article, of the tens of thousands of foreign-born members in the U.S. armed forces, more than 20,000 are not U.S. citizens, although many have been naturalized. Families must formally apply for citizenship within two years of the soldier's death (although not all choose to do so), and only since 2003 does a grant of citizenship to a deceased solder allow surviving parents and spouses to also apply for citizenship.

Two State Department contractors were fired and a third was suspended for improperly accessing Senator Barack Obama's passport file, the Washington Post reported. Senator John McCain and Senator Hillary Clinton's files were also improperly accessed, the New York Times reported. Although the earliest of the three incidents occurred on January 9, 2008, the State Department did not notify Senator Obama regarding the alleged breaches and possible violation of the Privacy Act until March 21, 2008. Congressman Henry Waxman, who chairs the committee of jurisdiction over the matter, is calling for the State Department to identify the contractors involved in the data breach.

The Southern Poverty Law Center has released a report, "The Year in Hate," that says "the latest annual count of hate groups operating in the United States rose to 888 last year, capping a 48% increase since 2000."

It adds that "new FBI statistics suggest a 35 percent rise in hate crimes against Latinos between 2003 and 2006. Experts believe that such crimes are typically carried out by people who think they are attacking immigrants."

The SPLC's interactive website allows users to view the hate groups active in their state, provides profiles of twenty of the country's most influential anti-immigrant activists, and contains links to all the articles in the report.

Federal District Court Judge William H. Pauley of the Southern District of New York adopted Magistrate Judge James Francis's reasoning that "the exercise of peremptory challenges on the basis of national origin is prohibited by the Fourteenth Amendment." A New York Times story described Judge Pauley's actions as affirming that "allowing American-born blacks on a Bronx jury but systematically excluding West Indians is discriminatory."

According to Judge Pauley's opinion, during jury selection, the prosecutor used peremptory challenges to exclude four prospective jurors from Jamaica and one from Trinidad, after which defense counsel objected that the prosecution had "knocked off every juror of West Indian descent." The state trial judge upheld the removal of the five jurors as insufficient evidence of discrimination, noting "that 'black people from the West Indies' was not a group constitutionally entitled to protection in this circumstance."

The state appellate court agreed, after which a habeas appeal was filed in federal court, resulting in Judge Francis's report and Judge Pauley's opinion that national origin is a prohibited basis for peremptory challenges. Judge Pauley ordered a hearing where "the prosecutor will be required to present legitimate non-discriminatory reasons for her exercise of peremptory challenges against the five prospective jurors of West Indian descent. Then the court will determine whether [the defense counsel] has satisfied his burden of showing discriminatory intent."

The Massachusetts Appeals Court ruled that state insurer MassHealth must revisit its decision not to pay for surgery for an HIV-positive teenager who developed a hump on her neck from her HIV medications.   

The Wall Street Journal reported that retailers are providing names to collection agencies of those they suspect of shoplifting, even when there is no conviction or solid evidence to indicate guilt.  Retailers turn over the names to collection agencies, who then write and telephone suspected shoplifters, threaten lawsuits or police involvement, and demand money (including "pre-litigation" legal fees) in amounts that often greatly exceed the value of the alleged theft. The collection agencies then split the money with the retailers.

Retailers need not have any intention to sue, and the "civil recovery" statutes do not limit who can be targeted. Lord & Taylor, for example, never follows up civil-demand letters with lawsuits, according to the report.

Last year, Florida Judge Donald Hafele filed a complaint with the state bar about the civil recovery practices used by the law firm Palmer, Reifler & Associates, P.A. While the judge’s complaint was dismissed due to jurisdictional issues, the bar association told the firm that, “harassment techniques in an effort to collect for your clients are not acceptable.”

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 10. The Constitution as a Polarizing Document: Professor Mark Graber (see previous posts 1, 2, 3, 4, 5, 6, 7, 8, 9)

The fitting way to bring this dialogue to a conclusion is by repeating the significance of Michael Klarman’s work on the constitutional history of race in the United States and acknowledging the significance of Professor Klarman’s recent post. He is right to note that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 9. The Political Dynamic that Led to the Civil War and the Civil Rights Revolution (see previous posts 1, 2, 3, 4, 5, 6, 7, 8)

As my last entry in this conversation with Mark Graber, I want to focus on one of the central themes in Unfinished Business: the political dynamic that led both to the Civil War and to the civil rights revolution. (Much of the credit for identifying and exploring this dynamic in the earlier period goes to William Freehling, who has authored pathbreaking work on the road to secession.)

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 8. Brown Has Lost Its Power to Advance the Cause of Racial Equality: Professor Mark Graber (see previous posts 1, 2, 3, 4, 5, 6, 7)

Professor Klarman and I for the past week have engaged in a tag team match against Brown v. Board of Education. While quibbling over details, we have agreed that the Warren Court’s decision was not nearly as heroic as commonly thought, not nearly as effective in securing racial equality as commonly thought, and far more motivated by self-interest than commonly thought. We are free to suggest these heretical sentiments, I wish to suggest, because Brown is no longer our case. Brown has become a constitutional celebrity, and as such, has lost all power to continue advancing the cause of racial equality.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 7. Progress in Race Relations is Often an Unintended Consequence or the Result of Ulterior Motives: Professor Michael Klarman (see previous posts 1, 2, 3, 4, 5, 6)

Mark Graber is surely right that we should not deny that some historical actors have taken racially progressive positions for the best of reasons.  White abolitionists -- ­a tiny, much despised portion of the northern population in the 1830s -- ­opposed slavery and favored racial equality for religious and moral reasons, not for any ulterior motives.  Still, it is striking how frequently in American history racially progressive positions have been adopted for­ -- at least in significant part­ -- ulterior motives and how often racial progress has been an unintended consequence of actions taken for reasons having nothing to do with race.  These are two slightly different points, so let me elaborate upon them in turn.

The Bush administration cheered on a European Commission proposal to fingerprint all foreign travelers entering and leaving Europe, including U.S. citizens. The European database would also track facial images and be designed to allow easy sharing of data with the United States.

The Washington Post reports that these changes are part of a "vast and growing trend" to collect and share data on travel, shipping, and financial transactions. For example, the U.S. government is copying data from electronic devices, such as laptops and cell phones, which cross the boarder, even when the government does not suspect wrongdoing.

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.

Part 6. Concerns Regarding The New Conventional Wisdom: Professor Mark Graber (see previous posts here, here, here, here, and here)

A new conventional wisdom on race and American political development is developing, at least in the small part of the academic world I inhabit. In this admittedly small but cozy universe, racial progress has hardly been steady or inevitable. Persons of color in the United State shave experienced far longer periods of racial retrenchment or retreat than periods of racial progress, and racial progress tends to occur only when proponents of a diverse society are able to link their egalitarian visions with such non-racial goals as defeating the Confederacy or winning the Cold War. Some of the crucial texts articulating this vision include, Klinkner and Smith, THE UNSTEADY MARCH, Dudziak, COLD WAR CIVIL RIGHTS, Keyssar, THE RIGHT TO VOTE, and, of course, the life works of Michael Klarman. While I am in my plug terrific works by terrific people mood, I should probably ask readers to keep their eyes out for forthcoming works by Julie Novkov and Pamela Brandwein that will elaborate different themes on the new understandings of race and American constitutional development.

A New York appellate court ruled unanimously that a same-sex marriage celebrated in Canada must be given effect in New York. The ruling addressed a “longstanding – but recently overlooked” – distinction between marriage celebration and marriage recognition.

Americans traveling internationally have been subject to electronic searches that have resulted in the government's seizure and copying of information from their laptops, cell phones, and BlackBerrys without any suspicion of a crime having been committed, the Washington Post reported. Two San Francisco-based civil liberties groups are filing suit against the government to force it to disclose its policy on border searches, including the "boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment."

The Association of Corporate Travel Executives filed a Freedom of Information Act request last year in order to get information from the government regarding what happens to data the government has collected. Susan Gurley, executive director of ACTE, asked, “Is it destroyed right then and there if the person is in fact just a regular business traveler?”

Several corporations are changing their policies to make sure that those traveling do not do so with confidential information on the lap top or even so far as to only travel with “blank laptops” where the hard drive is empty. 

DOJ Pride, an organization comprised of current and former Justice Department employees and contractors and their significant others, will now be treated equally with all other DOJ employee affinity organizations under a revised equal-employment-opportunity policy promulgated by Attorney General Michael Mukasey, the Washington Post reported. "The Department has not been a welcoming employer for GLBT individuals" is how the organization described the work environment under Attorneys General Ashcroft and Gonzales in an October 2007 letter to Senator Feingold.

In 2003, then-Attorney General John Ashcroft barred the group from holding its annual pride celebration in accordance with an unwritten policy that prohibited the agency from sponsoring events without a presidential proclamation. DOJ Pride was also prohibited from using email, public bulletin boards, and meeting rooms. Other agencies have sponsored similar events, and former Attorney General Janet Reno had permitted these events under her tenure. The new policy will allow the use of meeting rooms, the advertisement of events, and the annual pride celebration in one of the department's main halls, just like all other employee affinity organizations.

ACS released an issue brief in 2006 on methods to protect LGBT workers in the absence of clear statutory protections.

"The largest onslaught of employment cases on the docket in years" is how Law.com characterizes the U.S. Supreme Court's grant of certiorari to three retaliation cases. Each case arises under a different civil rights law, with two cases scheduled for argument next week.

ACS will host a briefing on the cases on Tuesday, February 12, at the National Press Club in Washington, D.C. A panel of experts will discuss the issues presented and significance of each case. The panelists are:

• Eric Dreiband, Partner, Akin Gump Strauss Hauer & Feld LLP
• Jocelyn Frye, General Counsel, National Partnership for Women & Families
• Daniel Kohrman, Attorney, AARP Foundation Litigation
• William L. Taylor, Chair, Citizens' Commission on Civil Rights, and Vice Chairman, Leadership Conference on Civil Rights
• Moderator, Michael Gottesman, Professor of Law, Georgetown University Law Center

In a new issue brief released by ACS, Fatima Goss Graves discusses how to restore effective protection for students against sexual harassment in schools.

Graves, senior counsel at the National Women's Law Center, reviews how the U.S. Supreme Court has placed a disproportionate burden on students who attempt to recover damages for harassment inflicted by teachers or fellow students as compared with employees who are harassed in the workplace.

She argues that the current Title IX standards for harassment claims are unsound, and suggests federal and state law solutions that could "both restore the right of recovery for students who experience harassment in schools and provide meaningful incentives for school districts to promote safe school environments."

Graves suggests that the Civil Rights Act of 2008, recently introduced in Congress, is a potential solution at the national level. She also examines the role of state anti-discrimination laws, such as New Jersey's Law Against Discrimination, as a means for providing fuller protections for students while serving as a catalyst for reform at the state level.

A manual providing guidance for communities and school districts who wish to promote racial diversity and address racial isolation was recently released by the NAACP Legal Defense Fund and the Civil Rights Project.

"Still Looking to the Future: Voluntary K-12 School Integration; A Manual for Parents, Educators and Advocates" [PDF] examines the steps parents, advocates and educators can take to promote diversity and address the harms of racial isolation in their schools in light of the Supreme Court's 2007 decision Parents Involved in Community Schools v. Seattle School District No. 1, which limited the ability of school districts to take race into account in achieving these goals. 

More information is available here.

ACS is pleased to release an issue brief on "A Progressive Agenda for Women's Reproductive Health and Liberty on Roe v. Wade's Thirty-Fifth Anniversary" by Dawn Johnsen, Professor of Law at the Indiana University School of Law-Bloomington.

In the brief, Professor Johnsen writes that those who would criminalize abortion have much to celebrate regarding their progress since the 1980's. "Decades of mounting legal restrictions combined with harassment and stigmatization of health care provides have made abortion services increasingly less available to growing numbers of women." To overcome these setbacks, pro-choice progressives must articulate an agenda that works "to protect genuine reproductive liberty and reproductive health for all."

I would suggest three shifts in strategic priorities to augment ongoing efforts to persuade courts to invalidate abortion restrictions. First, focus more on persuading the public to support meaningful reproductive options through political action, grassroots organizing and public education. Second, focus relatively less on the threat of criminal abortion bans that would be enforceable if the Court were to overrule Roe and more on abortion restrictions already in place or on the immediate horizon, obstacles both legislative and extra-legal that cumulatively deprive growing numbers of women of access to abortion services. Finally, situate abortion within the full range of progressive policies essential to genuine reproductive health and liberty, policies that empower women and men to prevent unintended pregnancies and to bear and raise healthy and wanted children.

The issue brief is available here.

Memories of Dr. Martin Luther King, Jr. are recalled by ACS Board of Directors member & former Assistant Attorney General Roger Wilkins and Pulitzer Prize winning historian Taylor Branch. Wilkins spoke about Dr. King's efforts to convert Chicago gang members to non-violence, while Branch spoke of King's dedication to causes far broader than desegregation--his passion for ending the "triple associated scourges of poverty, racism and war."  Video is available at this link.

Watch Dr. King's "I Have A Dream" speech.

Late last week, the U.S. Court of Appeals for the First Circuit ruled in Cerqueira v. American Airlines, overturning a jury verdict for a passenger who alleged racial discrimination in a pilot's decision to remove him from a flight and an airline supervisor's denial of the opportunity to rebook his flight. The plaintiff, a computer programmer of Portuguese descent, reportedly appears Middle Eastern, and was removed from the plane because he sat next to two Israeli passengers whose erratic behavior raised security concerns on the part of airline staff. According to Public Citizen attorney Michael Kirkpatrick, the ruling "has given air carriers a license to discriminate against passengers based upon their race or ethnicity."

The Senate voted to expand the rights of whistle-blowers late Monday evening, joining the House in passing similar legislation, which will have to be reconciled before going to the President for his signature, the Washington Post reports. Similar legislation proposed over the last six years has been opposed by the Department of Justice, although this legislation may have enough support to override a presidential veto.

According to the Government Accountability Project, the legislation “plugs a government accountability loophole created last year when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties.” ACSblog summarized the Garcetti decision here and discussed the role of whistle-blowers here.

The bill protects federal employments who disclose information, permits employees to share classified information with members of Congress, and protects whistle-blowers whose have their security clearances revoked in retaliation for the disclosure, according to the article.

The legislation would also allow federal employees to challenge administrative rulings in their local federal appeals court instead of the U.S. Court of Appeals for the Federal Circuit.

ABC News has an uncommon interview with a professional executioner (for the state of Virginia) who has killed 62 people.

President Bush granted 29 pardons and one sentence reduction on Tuesday, reported the Associated Press. A Justice Department spokesman said President Bush had granted 142 pardons and commuted 5 sentences since 2001 (including the sentence of former White House aid I. Lewis Libby, who was not granted a pardon this month).

Earlier this month, the Los Angeles Times reported that the federal clemency system has the largest backlog of cases in recent history with 3,000 pending cases. Since World War II, around 500 to 1,000 pardons are usually pending at any time. 

Bush, having granted 113 pardons and commuted four sentences since taking office, has issued the lowest number of pardons of any president since World War II, except for President George H.W. Bush, who granted 74 pardons and three commutations in his one term.

ACS released an issue brief by Margaret Colgate Love that examined the president's pardon

The RH Blog has a commentary on the intersection between constitutionally protected speech rights, the tactics used by those who oppose abortion, and the right to privacy.

An email sent Monday morning by Will Duffy of the group Colorado Families Against Planned Parenthood calls the businessman "one of the first sub-contractors on the new Planned Parenthood project that really has no qualms about helping build the nation's largest child-killing center."

The email goes on to ask recipients to call the man's business to "let them know how they are helping to one day destroy lives, women, families, and a beautiful neighborhood. Beg them to leave the job site or forever be known as one who helped build America's largest deathcamp [sic]."

Finally, the email asks recipients to call the businessman "directly" and lists his home telephone number. . . .

The "Truth Truck," covered with huge pictures of bloody aborted fetuses, first showed up at his home two weeks ago. It parked in front of his house and across the street from the middle school bus stop.

The truck returned last week with a sign that said his business "takes blood money from an abortion mill." "Auschwitz" is how the sign on the truck referred to Weitz Company, the general contractor for the Planned Parenthood headquarters in northeast Denver.

The RH Blog is featuring a series of articles on women's reproductive health and rights in prison.  The articles include:

• "Mothering as a Reproductive Right," by Malika Sadaa Saar
• "Powerless in Prison: Sexual Abuse Against Incarcerated Women," by Nicole Summer
• "What do Prisons Have to do with Reproductive Rights?" by Rachel Roth

RH Blog is a service of RH Reality Check, an online publication providing information, analysis, and commentary about reproductive health and rights. 

The Kansas Supreme Court has cleared the way for a grand jury with subpoena powers to conduct an unprecedented investigation into abortion-clinic practices after a petition drive by anti-abortion activists.

Johnson County District Attorney Phill Kline will be presenting the case against Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri. Kline has filed 107 different charges against Planned Parenthood.

Peter Brownlie, President and CEO of Planned Parenthood of Kansas and Mid-Missouri, stated, “No health care provider should be threatened with felony convictions simply because elected officials oppose legal abortion.”

On the anniversary of the implementation of “don’t ask, don’t tell,” 28 retired generals and admirals released a letter on Friday urging Congress to repeal the 1993 legislation that permits gay men and lesbians to serve in the military only if they keep their sexual orientation secret.

The effort is also being supported by retired General John M. Shalikashvili, who was chairman of the Joint Chiefs of Staff when the policy was adopted and who called for the repeal of “don’t ask, don’t tell” in a New York Times article in January.

It is estimated that 65,000 gay men and lesbians now serve in the American armed forces, and that there are more than one million gay veterans.

The Los Angeles Times reported that the federal clemency system has the largest backlog of cases in recent history. More than 3,000 petitions for clemency filed by federal prisoners are pending. After acting on several hundred petitions a year, President Bush has acted on only 18 cases this year, most recently to commute the prison sentence of former White House aid I. Lewis Libby in July.

"The number of cases that are not being acted on is skyrocketing," said P.S. Ruckman Jr., a clemency expert and professor at Rock Valley College. Since World War II, on average 500 to 1,000 requests are pending at any given time, with approximately 1,000 petitions per year.

ACS released an issue brief by Margaret Colgate Love last month that examined the president's pardon powers.

The L.A. Times' Nicholas Riccardi reports on new efforts by antiabortion activists to amend state constitutions to define "personhood" as beginning at conception, thereby banning abortion, some contraceptive methods, and certain kinds of fertility treatments.

Stephanie Coontz has an op-ed in the New York Times that explores the history of marriage and asks "why do people – gay or straight – need the state's permission to marry?" She argues

Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.

Judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking data on customers absent a showing of probable cause and in violation of internal Department of Justice Guidelines, the Washington Post reported.

"Most people don't realize it, but they're carrying a tracking device in their pocket," said Kevin Bankston of the privacy advocacy group Electronic Frontier Foundation. "Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air."

A federal judge in Seattle suspended state rules requiring pharmacists to dispense “Plan B” emergency contraceptives, saying that the rules violated pharmacists’ freedom of religion by forcing them to choose between religious beliefs and their employment.

Under the court's order, pharmacists may now refuse to dispense the medication but are required to refer a patient to the “nearest” or a “nearby” place to obtain the drug. Women who seek emergency contraception must receive the medication quickly for them to be effective. State regulations had allowed pharmacists to opt out if a co-worker currently was willing to dispense the drug, and supporters of the law say "the rules were meant to keep pharmacists from imposing their personal religious or moral views upon patients by barring access to valid, legal prescriptions."

ACS released an issue brief in February by R. Alta Charo entitled "Health Care Provider Refusals to Treat, Prescribe, Refer or Inform: Professionalism and Conscience."

Howard Bashman wrote at Law.com last week about a federal case challenging, on federal Due Process grounds, a California state appellate court rule prohibiting citation to unpublished judicial opinions.

In the federal suit, the plaintiff alleges harm on two theories: first, that unpublished opinions are less likely than published opinions to attract the interest of higher courts wielding discretion over which cases they hear, and second, that the rule against citing unpublished decisions precluded him from citing favorable unpublished precedents.

The Georgia Supreme Court ruled that a ten-year prison sentence for consensual oral sex between a 17-year-old and 15-year-old constitutes cruel and unusual punishment. The 4-3 decision reversed Genarlow Wilson's conviction for aggravated child molestation following a party where he was videotaped having oral sex with the 15-year-old girl. Wilson has already served 2 years.

The Georgia law that resulted in Wilson's conviction was reclassified subsequent to his conviction as a misdemeanor; the state Supreme Court had held the 2006 law could not be applied retroactively and his felony conviction would stand.

The U.S. Supreme Court will hear argument in Danford v. Minnesota on October 31, which considers whether state Supreme Court decisions must use the U.S. Supreme Court’s standard in applying criminal law decisions retroactively or instead may expand retroactive application of those decisions to a broader class of criminal defendants

The spring issue of the ABA's Human Rights magazine focuses solely on the death penalty.

by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights

I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected.  We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.

Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.

I see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.
2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.

“A New York woman filed suit against a West Village restaurant for being thrown out of a women’s room there by a bouncer who, she said, did not care she was really female,” the New York Times reported on Wednesday. The woman, Khadijah Farmer, 28, said that she was at Caliente Cab Company, a restaurant, with her companion and a friend after the June 24 New York gay pride parade.  She went the women’s room, and while she was there, a male bouncer came in:

He began pounding on the stall door saying someone had complained that there was a man inside the women’s bathroom, that I had to leave the bathroom and the restaurant. Inside the stall door, I could see him. That horrified me, and it made me feel extremely uncomfortable. I said to him, ‘I’m a female, and I’m supposed to be in here.’ After I came out of the bathroom stall, I attempted to show him my ID…and he just refused to look at my identification. His exact words were, ‘Your ID is neither here nor there.”

The Transgender Legal Defense and Education Fund has filed the lawsuit in State Supreme Court in Manhattan, accusing the restaurant of discriminating against Ms. Farmer because her appearance did not comply with society’s norms concerning gender identity.

ACS released an issue brief entitled "The Citizen's Advocate: A Perspective on the Historical and Continuing Role of State Attorneys General" by Peggy A. Lautenschlager, former Wisconsin Attorney General, and Daniel P. Bach, former Wisconsin Deputy Attorney General.

The brief explains that state attorneys general who have sometimes been accused of "activism" are in fact exercising their legitimate authority in areas traditionally reserved to the states or where concurrent federal/state enforcement authority exists to serve the citizenry they represent.

The ACS student chapter at Stanford Law School has released its first podcast of the 2007-2008 season, featuring Judge Raymond Fisher of the U.S. Court of Appeals for the Ninth Circuit.  Judge Fisher shares his insights about the controversies involving the Department of Justice and the Supreme Court's reversal this spring of his opinion ruling that the Seattle school district could consider the race of students when making school assignment decisions.

You can listen to the podcast at this link.  To receive further installments in the (approximately bi-weekly) series, either subscribe at i-Tunes here or paste this link into your RSS reader.

Immigration officials have unveiled a new test for immigrants to become citizens, the New York Times reports.

Here is the government document that describes how an immigrant becomes a citizen. There are two major components to the test: a civic test and an English test. For the civics test, an applicant will be asked 10 questions, 6 of which must be answered correctly. The questions are drawn from American government, civics, and American history. Here is a list of the possible questions.

The English test has three components: an oral test, a reading test, and a writing test. The oral test is comprised of the questions normally asked during the naturalization interview. In the reading vocabulary test, applicants will be given three chances to read a sentence in English. A vocabulary list is available here. In the writing test, applicants will have three chances to correctly write a sentence dictated by the adjudications officer. A list of vocabulary words for this test is available here.

This document compares the old and new civics test. Some questions from the new civics test are after the jump.

Maryland's highest court has reversed a lower court ruling that had struck down a ban on same-sex marriage, reported the Washington Post.

Baltimore Judge M. Brooke Murdock had held that "the 1973 law banning same-sex marriage is discriminatory and 'cannot withstand constitutional challenge.'"

In overturning that decision, the four judge majority wrote that absent evidence of discrimination:

Judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.

In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structures in which children are born are related reasonably to the means employed by [the law banning same-sex marriage], our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the reasons.

The Post reported the "plaintiffs described the protections they do not have because their relationships are not legally recognized: [including] inheritance and adoption rights, decisions about life support, hospital visitation."

In a dissenting opinion, Judge Bell

faulted the majority for not recognizing gay people as a 'suspect class,' a group that warrants special protections from discrimination. Bell dismisses the majority view that gays are politically empowered and should not be viewed as constituting such a class.

Video of a panel hosted by ACS on the difference between marriage and civil unions at its 2007 national convention is available here. A transcript of a discussion at the 2004 national convention on gay marriage, federalism, and amendment the constitution is available here.

Jamie Gorelick, a former deputy attorney general, has an op-ed in today's Washington Post setting forth ten priorities for the next Attorney General. Here are the recommendations in a nutshell:

• Restore credibility and comity with Congress.
• Take care that the laws be faithfully executed.
• Bring the professionals back.
• Depoliticize hiring.
• Restore order to the relationship with the White House.
• Keep politics out of public integrity cases.
• Maintain vigilance against terrorism.
• Fight crime.
• Respect rights.
• Lead with values.

Watch Jamie Gorelick and others discuss the role of the Justice Department from ACS' 2007 national convention. Clips from that discussion are forthcoming.

The GAO just published a report examining how federal agencies review existing regulations, concluding "Opportunities Exist to Improve Effectiveness and Transparency of Retrospective Reviews." The 122-page report's recommendations are after the jump.

Attorney General Gonzales will gain new power over state death penalty cases, according to TPMmuckraker.

The Los Angeles Times provides background:

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

Alan Berlow wrote an article in the Atlantic in July/August 2003 that examined how Alberto Gonzales, when he was legal counsel to Texas Governor George W. Bush, prepared 57 death penalty memoranda for Governor Bush's review.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Civil rights attorney Oliver White Hill, a member of the Broad v. Board of Education legal team, died today at 100.  ACSBlog Guest Blogger Anurima Bhargava recently wrote about Hill's life:

One sees a great deal in 100 years. In 1907, Teddy Roosevelt was President, there were only 45 states in the union. And African Americans were locked into an ironclad system of injustice known as Jim Crow. This violent negation of democracy was secured by the Supreme Court decision in Plessy v. Ferguson and upheld by centuries of brutal custom. Only the most resilient optimist could foresee a day when access to education, public facilities, housing, jobs and transportation were not based on color-coded hierarchy, and the nation could realize a day such as the 53rd anniversary of the landmark Brown v. Board of Education decision.

Fortunately, Oliver Hill was one of those optimists. Hill, who turned 100 years old on May 1, 2007, not only witnessed the demise of that system, but he was one of the legal strategists who helped bring it down. He along with Thurgood Marshall, James Nabrit, Jack Greenberg and others were part of the legal team that brought an end to legalized segregation in 1954.

Time has a way of reducing even the most far-reaching moments of history into thumbnail sketches and in the case of Brown we see simply a case about segregated education. In reality, the Brown decision marked a legal turning point in which the 14th Amendment was returned to its true purpose. Crafted in the aftermath of the Civil War, the Amendment was intended to protect newly emancipated blacks from state laws that sought to virtually re-enslave them.  But a series of Supreme Court decisions culminating in Plessy v. Ferguson chipped away at the Amendment and left blacks nearly defenseless against resurgent racism, particularly in the Deep South. In short, achieving racial democracy in America meant finding a way to revive the spirit of that Amendment.

Inspired by their mentor Charles Hamilton Houston, Oliver Hill - and his classmate and close friend Thurgood Marshall understood this reality. When a group of black students marched out of R.R. Moton High School in Virginia to protest the dilapidated conditions of the building, Hill seized the opportunity to attack segregation. When the parents of eight year-old Linda Brown challenged the policy that sent her to a school miles away from her home simply because she was black, Marshall saw a chance to change the course of history. Joined by school desegregation cases from Delaware, South Carolina and Washington, D.C. that became collectively argued as Brown v. Board of Education, their 1954 Supreme Court victory opened more than the doors of schoolhouses.  It led to cases challenging racism in transportation, voting rights and housing. Brown provided a legal foundation that energized the Civil Rights Movement.

Last weekend, the Fifth Annual ACS National Convention included a breakout session on "Examining 'Backlash' and Attacks on Landmark Decisions from Brown to Roe to Goodridge."  Streaming video
of the discussion is now available in the ACS Multimedia Library.

This session -- which was taped and re-broadcast by C-SPAN and hosted by ACS's Issue Groups on Equality & Liberty and Constitutional Interpretation & Change -- explored the argument, heard lately with increasing frequency, that over-reliance on the courts has undermined progressive goals.

Among the discussions at this weekend's Fifth Annual ACS Convention, the plenary session on "Race and the Constitution" included a compelling exchange about the ongoing significance of race as a dimension of inequality.  Streaming video and downloadable audio of that session -- and all other speeches, plenary panels and breakout sessions at the Convention -- will be made available in the coming weeks.

Writing in The Washington Post, Ohio State University History Professor Kevin Boyle reflects upon the 40th anniversary of the Detroit Race Riots of 1967, noting in The Fire Last Time that "the urban crisis still smolders" in ways visible along both class and racial lines. 

In an op-ed that ran in several regional newspapers this week, Professor Joseph Thai of the University of Oklahoma College of Law notes a series of cases recently decided by the Supreme Court that, he argues, have "made it dramatically more difficult--if not impossible--for ordinary Americans to have their day in court."  He also criticizes "the new court's aggressive efforts to spare businesses the expense of litigation, and the executive the check of unfavorable judicial review," before concluding that "this is not the way it is supposed to be under our Constitution."

Professor Paul Taylor and Attorney Sarah von der Lippe criticize the recent Supreme Court decision striking down voluntary school integration plans in a recent op-ed in the Philadelphia Inquirer.

There are many specific problems with the court's decision, beginning with its cynicism. The court pleads that it is powerless to address economic and geographic isolation, as if Lady Justice is not blindfolded, but handcuffed. It pretends that intent doesn't matter, that considering race to reduce racial isolation is the moral equivalent of standing in the schoolhouse door. And it claims to leave all relevant precedents in place, while actually undermining decades of desegregation law.

They call for increased engagement with the political system.

We must demand that federal, state and local governments provide tools to assist children in racially isolated schools. A good start would be to press Congress for legislation that makes it easier for parents to challenge these schools in court. And we must seek out, implement, and support new strategies for diversifying our schools.

And they call for each person to shoulder a commitment to making a better future.

We must accept the responsibilities that diversity and democracy place on each of us as individuals. This means more than resisting the constrained moral vision and tendentious legal reasoning of the Roberts Court, more than finding ways to integrate our schools. It means working in our everyday lives for interracial understanding, instead of for the red herring of abstract color-blindness. We owe this to our fellow citizens, and to our children, the grandchildren of Brown.

Find the combined Supreme Court decisions in Parents v. Seattle School District and Meredith v. Jefferson County Public Schools here. Go here for more commentary on the wider implications of the decision.

by Tomiko Brown-Nagin^*

The legal analysis in the Supreme Court’s recent decision rejecting race conscious school assignment policies is subject to debate.  One’s conclusion about whether the Equal Protection Clause permits such policies turns on which school of constitutional interpretation one embraces; and that conclusion likely relates to whether one is cognizant of and believes that government should attempt to ameliorate racial stratification and subordination.  But one of the plurality’s analytical moves—its turn to history—should not be open to debate.  

Chief Justice John G. Roberts Jr. invoked the arguments of the NAACP Legal Defense Fund in Brown v. Board of Education in support of the plurality’s decision striking down the Seattle and Louisville’s school plans.   The NAACP argued that racial classifications were categorically unconstitutional, Justice Roberts noted, and the Brown Court unanimously agreed.  Therefore, it was axiomatic, he claimed, that the Seattle and Louisville plans, which also use race, albeit it a much different context, were unconstitutional.

The plurality’s opportunistic historical analysis was strategically simplistic and incomplete. It overlooked the context in which the NAACP litigated Brown, as well as the essential goal of its litigation campaign. NAACP lawyers made their case in a highly constrained legal environment, one in which the U.S. Supreme Court had made crystal clear that it was constitutional to classify public school students by race, provided the schools were equal. The NAACP thus made the equivalent argument — that it was unconstitutional to classify students by race, even if the schools were equal — to advance the opposite position. That was a tactical decision designed to garner a clear statement of legal principle from the Court that the South could not deny or evade by claiming that its segregated schools were somehow in fact equal. 

Speaking at last week's Supreme Court roundup, leading Supreme Court advocates Drew Days and Pam Karlan explain why Parents Involved should not be described as an "affirmative action" case.
 

For the first time in almost 40 years, the Supreme Court has vacated its own denial of cert in a case, and has agreed to hear a series of appeals by Guantanamo Bay detainees challenging their detention.  Lyle Denniston explains the unusual posture of this grant:

Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act of 2005, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."

Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."

If Denniston is correct, than the five Justices who agreed to hear this case are also the same five Justices who voted against the Bush Administration in Hamdan v. Rumsfeld.

Speaking at today's Supreme Court review, Stanford Law professor Pam Karlan offered her assessment of the Court's new view of reproductive freedom:

But the rationale the Court has given here would allow them to ban any abortion procedure, because any woman might regret.  Now of course, you might wonder “how does the Court know this?” and Justice Kennedy is quite candid.  The Court knows this because it looked deep inside itself.  At several points, [Justice Kennedy] said “there’s no evidence to support my position, but I don’t need no stinking evidence.”  And so, I think this is a very fundamental change in the Court’s sensibility about abortion, and it’s played out . . .  in a number of other cases where the Court has said “we don’t actually need evidence because we know this to be true.”

Today, ACS hosted it's annual review of the Supreme Court Term.  In their closing remarks, several of the panel of six leading Supreme Court advocates and constitutional experts commented on this Term as the beginning of a new, conservative era in the Court's history.

Frequent Supreme Court litigator Tom Goldstein suggested that this Term began a rightward lurch as significant as the leftward shift of the Warren era:

So I would say that we’re probably going to look back on this term as if it were June 15, 1961 in reverse.  June 15, 1961 was the day that Mapp v. Ohio was decided. It was in effect the birth of the Warren court era, it was decided by a five vote majority.  They Court overruled Wolf vs. Colorado and applied the 4^th amendment to the states.  And it started a whole trend of a series of cases from Reynolds and Sims to Frontiero. . . . all of the major doctrines that law students today think of as if they were written into the Constitution had their birth at the end of the term in 1961. 

Former Solicitor General Walter Dellinger lamented two of the Term's most significant decisions:

I just think the term’ll be marked by two cases that are historically tragic decisions.  I think the court has turned the corner on a jurisprudence that saw government control of women’s reproductive lives as a totalitarian intervention and was at the core of what we think of as liberty. And I think the school decisions were historically misguided because they conflate two uses of race that are so fundamentally different in such a hyper-technical way that belies common sense.  Brown condemned the system of southern racial apartheid, of domination and subordination.  The people of Louisville have worked together to try to come up with a system to keep people in the public school system.  They have refused to give up on the public schools.  They have worked across racial lines.  They know that they’re building upon a system of residential segregation which was created by federal, state and local governments.  And they know that just to choose that would be to perpetuate segregation.  They tried to bring the races together in public schools.  And that’s not the same thing that the court condemned in Brown. 

and Stanford Law Professor Pam Karlan closed the event with these thoughts:

[T]his term we saw the Court announce the first amendment applies to corporations, in the Wisconsin Right to Life case, but not to students, in the Bong Hits 4 Jesus case.  We saw the court announce that we should be deferential to state trial judges in criminal cases but not to democratically-elected local school boards in the schools cases.  So if this is the birth of a new constitutional era, all I say is what an ugly baby.

Jim Ryan, Professor of Law, University of Virginia School of Law

A quick reaction to today’s decision in the Seattle and Louisville cases:

            It is easy to conclude that today’s decision is a defeat for those interested in maintaining or increasing racial integration in public schools.  After all, a majority of the Court struck down two plans – one from Seattle and the other from Louisville – that used race in an attempt to integrate schools.  But this reaction misses the more important and surely more enduring principle contained in today’s opinion:  school districts can use race-conscious measures to achieve integrated schools.

            That principle is contained in Justice Kennedy’s opinion, which is the controlling opinion for the Court.  Justice Kennedy accepts that achieving diversity and overcoming racial isolation in public schools are compelling interests.  He concluded that the use of race by Seattle and Louisville was too crude, involving individual classifications that divided students into white and black, or white and other.  He explic