Sunday, May 3, 2015

Kennedy at the Rubicon on Marriage

          Anthony M. Kennedy was a young and fairly new federal appeals court judge in 1980 when he first showed latent support for gay rights in a judicial opinion. In a decision upholding the Navy’s discharge of three service members for “homosexual acts,” Kennedy deferred to military authorities, but he added a sentence suggesting that outside the military the Constitution might protect “consensual private homosexual conduct.”
          In recalling the decision last week on the eve of the Supreme Court’s hearing in the same-sex marriage cases, the Los Angeles Times’s veteran reporter David Savage wrote that “almost no one foresaw” that Kennedy would become “the Supreme Court’s most important voice on gay rights.” You’ll have to take my word for this, but I took note of Kennedy’s opinion as editor of the Los Angeles Daily Journal in the 1980s while working on a story about another gay military discharge case.
          In Washington a couple of years later, I thought about the case when I confidently described Kennedy as a moderate conservative after his appointment to the court. Eight terms later, I was not surprised when Kennedy wrote for the 6-3 majority in Romer v. Evans (1996) striking down Colorado’s anti-gay rights initiative.
          Inside the courtroom on the final day of the 2002-2003 term, I clenched my fist into a silent cheer when Chief Justice William H. Rehnquist announced that Kennedy had the opinion for the court in the anti-sodomy law case, Lawrence v. Texas (2003). Some gay men in the courtroom were said to have teared up as Kennedy summarized the decision from the bench, in his full-earnest mode. For me, less than four years after having come out myself, there were no tears, only the heart-racing excitement any reporter would experience as witness to an historic event.
          Ten years later, I was fairly confident that the court would strike down the Defense of Marriage Act (DOMA) but uncertain about what it would do with California’s anti-gay initiative Proposition 8. With Kennedy’s opinion in United States v. Windsor (2013) striking down DOMA’s major provision and the Prop 8 case ducked, I began confidently predicting that Kennedy would join and likely lead an eventual majority in favor of marriage rights for same-sex couples.
          To borrow my colleague’s phrase, almost no one foresaw how quickly the marriage issue would return to the court. Certainly, I didn’t. And, it would appear, Kennedy didn’t either. Thus, Kennedy worried out loud in his first comments during the oral argument last week [April 28] in Obergefell v. Hodges about the pace of change on the issue.
          With Lawrence on the books for only “10 years” (actually, almost 12), Kennedy asked whether the court should be changing a definition of marriage that goes back for “millennia.” “There has not really been time,” Kennedy remarked, “for the federal system to engage in this debate, the separate states.”
          Later on, Kennedy also discounted any of the social science that same-sex marriage advocates had cited to show, for example, that children do well when raised by same-sex parents. “It seems to me then that we should not consult at all the social science on this,” he told the plaintiffs’ lawyer, Mary Bonauto, “because it’s too new.”
          Kennedy became much more animated, however, when he confronted the lawyer representing the states, former Michigan solicitor general John Bursch. Kennedy had spoken of the importance of “dignity” in the gay rights context as early as 1986, but Bursch argued that the state’s “entire interest” in marriage was strengthening parent-child bonds and not all “dignitary bestowing” for the spouses.
          “Just in fairness to you,” Kennedy said, “I don’t understand this not dignity-bestowing. I thought that was the whole purpose of marriage. It bestows dignity upon both man and woman in a traditional marriage.”
          “It’s dignity bestowing,” Kennedy continued, “and these parties say they want to have that same ennoblement.” Bursch tried to recover, to no avail. Ending the colloquy, Kennedy confessed he was still “puzzled.
          With Kennedy’s first comment in mind, I hedged my bets in a radio hit that afternoon. Recalling Justice Brennan’s famous “counting to five” rule, I said that lawyers on both sides had some reason to think they had a shot at the critical fifth vote: Kennedy’s.
          Others in the press corps were similarly tentative, but Adam Liptak in The New York Times wrote in his lead that the “tone and substance” of Kennedy’s questions gave marriage supporters “reasons for optimism.” BuzzFeed’s Chris Geidner flatly predicted a pro-marriage ruling.
          Tellingly, Ed Whelan, a former Scalia law clerk and now the Bench Memo blogger for the National Review’s online site, openly despaired. “Having watched Justice Kennedy for 25+ years,” Whelan tweeted, “I have no real hope he’ll let state marriage laws survive.”
          Kennedy is capable of Hamlet-like indecision. He worried aloud to a reporter about “crossing the Rubicon” on the day in 1992 when he joined a five-justice majority to reaffirm the abortion rights decision Roe v. Wade. In the end, however, Kennedy must be true to his own self and his record on the bench. He may have wrestled with the decision, but when the justices met in conference on Wednesday [April 29], the best guess is that he provided the fifth vote for marriage equality and, as the senior justice in the majority, assigned the opinion to himself.

Monday, April 27, 2015

Marriage Plaintiffs Bring Diverse Stories to Supreme Court

      James Obergefell will apparently go down in the history books as the lead plaintiff in the same-sex marriage cases perhaps like Linda Brown in the school desegregation cases or like lesser known, unsuccessful civil rights litigants such as Michael Hardwick in the decision upholding anti-sodomy laws, Bowers v. Hardwick. But the Ohio widower’s suit, now known as Obergefell v. Hodges, was neither the first nor the broadest of the four cases set to be argued before the Supreme Court on Tuesday [April 28] in what may be a climactic showdown on marriage rights for same-sex couples.
      Instead, the first and the broadest of the four cases was filed by Michigan nurses April DeBoer and Jayne Rowse in January 2012, a year-and-a-half before Obergefell filed his suit in his home state of Ohio. DeBoer and Rowse, unmarried but in a long-term committed relationship, went to federal district court in Detroit as the concerned mothers of three children adopted from the state’s foster care system.
      Michigan law prevented DeBoer and Rowse from jointly adopting each of the three children. They asked in their suit simply for joint adoption, but Judge Bernard Friedman suggested they broaden the suit into a direct attack on the state’s ban on same-sex marriages. Friedman then presided over a full-dress, nine-day trial before ruling the state ban unconstitutional on March 21, 2014.
      Obergefell, a one-time IT consultant now working in real estate in Cincinnati, filed his suit in July 2013 along with his legally married husband, John Arthur. Arthur had been stricken in 2011 with ALS  the neuromuscular condition known as Lou Gehrig’s disease  and by 2013 was degenerating rapidly toward an imminent death.
      Obergefell and Arthur were married in Maryland in July 2013, barely two weeks after the Supreme Court’s decision in United States v. Windsor to strike down the major part of the federal Defense of Marriage Act. The ceremony was performed in a medically equipped plane still parked on an airport tarmac. Back in Cincinnati, they filed a federal court suit asking for an order that Arthur’s death certificate reflect his marriage to Obergefell despite the state’s non-recognition provision. Judge Timothy Black issued the order and then broadened his ruling in December 2013 to prohibit Ohio authorities generally from refusing to recognize same-sex marriages from other states.
      Plaintiffs in the Kentucky and Tennessee cases went to federal court with the same type of concrete interests in winning legal recognition of their relationships. In Kentucky, Greg Bourke and his husband Michael DeLeon filed suit on July 26, 2013, along with three other married same-sex couples, seeking to strike down the state’s non-recognition provision. Bourke and DeLeon had been together since 1981 and were raising two children together. They had married in New York in 2004 and, like DeBoer and Rowse in Michigan, wanted to be recognized jointly as parents of each of the two children.
      Judge John Heyburn II ruled in their favor on February 12, 2014, but issued a broader ruling after two unmarried couples joined the suit to directly challenge Kentucky’s ban on performing same-sex marriages. Heyburn’s ruling, issued on July 1, is the only one of the rulings in the four cases to hold sexual orientation a suspect classification and laws based on sexual orientation subject to heightened constitutional scrutiny.
      In Tennessee, Valeria Tanco and Sophia Jesty went to federal court in October 2013, among other reasons, to be eligible for family health plan coverage from the University of Tennessee, where they both taught veterinary medicine. They had met as classmates at Cornell’s College of Veterinary Medicine, married in New York, and then moved to Tennessee when they were both offered faculty positions at the state school. Tanco was also pregnant when the suit was filed, and the suit sought to ensure that both women would be listed as parents after the child’s birth.
      Two other married same-sex couples who relocated to Tennessee for job-related reasons similar to Tanco’s and Jesty’s joined the suit, seeking to nullify the state’s non-recognition provision. Judge Aleta Trauger ruled for the plaintiffs on March 14, 2014, citing Heyburn’s decision from one month earlier in several places. “All relevant federal authority” supported the couples’ cases, Trauger wrote. Proscriptions against same-sex marriages, she predicted, “will soon become a footnote in the annals of American history.”
      Despite the lower courts’ unanimity in the four cases, the Sixth U.S. Circuit Court of Appeals upheld the challenged state laws in a split decision on November 6, 2014. Writing for the majority, Judge Jeffrey Sutton said the issue was better left to legislatures than to courts; he deferred to the states’ policy arguments that the bans encouraged responsible procreation by opposite-sex couples and avoided risks of raising children in same-sex households. Judge Deborah Cook joined the decision.
      In a blistering dissent, Judge Martha Craig Daughtrey criticized what she called Sutton’s “false premise” of looking to legislatures instead of courts to safeguard rights. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she wrote, the constitutional system of checks and balance will “prove to be nothing but shams.”
      Obergefell’s case is listed first only because it was the first to be filed at the Supreme Court, all on the same day. In news interviews, Obergefell has said he is fighting for himself and his husband, who died on October 22, 2013, before any of the substantive rulings in the four cases. Obergefell filed the suit initially against the state’s governor, John Kasich, but the lead defendant is now Russell Hodges, director of the state’s department of health.

On Marriage, U.S. Judges in Lower Courts All but Unanimous

      The Supreme Court is all but certain to be divided when it issues its decision in the same-sex marriage cases, presumably at the end of June. But federal judges in district and appellate courts have been all but unanimous in favor of recognizing a constitutional right to marriage for same-sex couples over the past 17 months.
      The four judges who ruled in favor of plaintiff same-sex couples in the cases to be argued before the court on Tuesday [April 28] are a representative cross-sample of the scores of federal judges who, with two exceptions, have ruled in favor of marriage equality since December 2013. All of those rulings have relied in large part on the Supreme Court’s decision in June 2013 in United States v. Windsor, which struck down the major provision of the federal Defense of Marriage Act (DOMA).
      The judges from Michigan, Ohio, Kentucky, and Tennessee include two who were appointed by Republican presidents, two by Democrats. They range in age from early 60s to early 70s. They received their law degrees from schools representing the range of legal education: elite, second-tier, state school, small local school. Their legal careers before appointment to the federal bench were nothing out of the ordinary.
      All four of the judges spent most of their time after law school in private practice. Two had worked as prosecutors, and two had served in lower federal courts — either as a magistrate or as a bankruptcy court judges. Only one, it appears, ever sought elective office.
      Here as reference are capsule biographies of the four with the case names in parentheses:
      Bernard Friedman, born 1943, Detroit College of Law, local prosecutor, private practice, appointed by Reagan, 1988 (DeBoer v. Snyder).
      Timothy Black, born 1953, Harvard Law, civil litigator, unsuccessful candidate as Democrat for state judge, U.S. magistrate judge (chosen by USDC judges), appointed by Obama, 2009 (Obergefell v. Hodges).
      John Heyburn II, born 1948, University of Kentucky Law, civil litigator, appointed by Bush41 in 1992 (Bourke v. Beshear) .
      Aleta Trauger, born 1945, Vanderbilt Law, private practice, asst US atty, chief of staff to mayor of Nashville, US bankruptcy judge (1993-1998), appointed by Clinton, 1998 (Tanco v. Haslam).
      Among the five federal courts of appeals to rule on same-sex marriage, only the Sixth Circuit ruled against recognizing a right to marriage for gay and lesbian couples. In the other four circuits, two decisions were unanimous and two were by 2-1 votes. The dissenting judges in the Fourth and Tenth Circuit cases were both Republican appointees.
      In the Sixth Circuit decision, Obergefell v. Hodges, the three judges divided along the partisan lines of the president who appointed them. Here as reference are capsule biographies:
      Jeffrey Sutton, born 1960, Ohio State College of Law, private practice, Ohio state solicitor, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.
      Deborah Cook, born 1952, University of Akron Law School, private practice, Ohio Court of Appeals, Oho Supreme Court, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.
      Martha Craig (Cissy) Daughtrey, born 1942, Vanderbilt Law School, local prosecutor, Tennessee Court of Criminal Appeals, Tennessee Supreme Court, appointed by Clinton in 1993.
      Sutton wrote the majority opinion; Daughtrey wrote a dissenting opinion.
      The Michigan and Kentucky cases challenge state laws banning marriage for same-sex couples; the Ohio and Tennessee cases challenge state laws refusing to recognize same-sex marriages from other jurisdictions. The Supreme Court consolidated the four cases for two-and-a-half hours of arguments on Tuesday, with 90 minutes on the state bans and 60 minutes on the non-recognition provisions.

Sunday, April 26, 2015

Supreme Court's Defining Moment on Marriage

      Sixty years ago, lawyers from four states defending racial segregation before the Supreme Court urged justices to weigh history, tradition, judicial restraint, and the risk of social disruption as more important than the rights of black school children to educational equality. With courage and hard-won unanimity, the Supreme Court rejected those arguments and issued the now universally celebrated decision in Brown v. Board of Education (1954) that outlawed racial segregation in public education.
      Lawyers representing four states will rise before the Supreme Court on Tuesday [April 28] to make similar arguments that history, tradition, judicial restraint, and the risk of social disruption outweigh the rights of same-sex couples to marriage equality. The arguments against equality today are no stronger than the arguments six decades ago, but the Roberts Court is all but certain to speak with divided voices even if, as expected, it strikes another blow for equal justice under law.
      Three conservative justices — Antonin Scalia, Clarence Thomas, and Samuel A.Alito Jr. —  are on record just two years ago in finding no constitutional right to marriage for same-sex couples. Those three, but significantly not Chief Justice John G. Roberts Jr., said as much when they dissented from the court’s decision in United States v. Windsor (2013) to strike down the Defense of Marriage Act’s ban on federal marital benefits for legally married same-sex couples.
      The justices were divided in the school desegregation cases after an initial round of arguments in fall 1952. They came together only after a temporizing decision to ask for rearguments and the fortuitous appointment of a new chief justice, Earl Warren, to replace the ineffectual Fred Vinson after Vinson’s death in fall 1953. It is an unfavorable reflection on the current court that no one anticipates a possible change of mind from those three Windsor dissenters even after two-and-a-half hours of oral arguments and an outpouring of more than 140 friend-of-the-court briefs.
      In the marriage cases, the four states — Kentucky, Michigan, Ohio, and Tennessee — and the religious and social conservative groups supporting them put history and tradition first and foremost in arguing against a ruling for the gay and lesbian couples. They say the court must defer to the “traditional definition of marriage” — one man, one woman. The states in Brown made the same appeal to tradition in defending racially segregated schools.
      The states today are, of course, correct that no U.S. jurisdiction recognized same-sex couples as legally married until Massachusetts adopted court-ordered marriage equality in 2004. In an amicus brief supporting the plaintiff couples, however, scholars on the history of marriage stress that marriage laws have changed over time to reflect changing views of the spouses’ respective roles and rights. And they note pointedly that interracial marriages were banned in many states until the Supreme Court decided in Loving v. Virginia (1967) to lay those anti-miscegenation laws to rest as a violation of a fundamental equal protection right to marriage.
      The states’ judicial restraint arguments rest both on a narrow construction of constitutional text and a narrow view of judicial authority. The Fourteenth Amendment, they contend, was never intended to displace the states’ traditional authority over marriage. The states in Brown made the same argument in defending their prerogatives in education policy — unsuccessfully. And Loving is precedent for the Fourteenth Amendment to override the states just the same on marriage policy.
      The states argue in any event that the Fourteenth Amendment does not protect homosexuals as a class. As original intent, they are no doubt correct. Over time, however, the amendment has been recognized as limiting discrimination not only on the basis of race, but also, as notable examples, on the basis of sex and alienage. And the plaintiffs and several civil rights groups emphasize that gays and lesbians meet the established standards for recognition as a suspect class, including a history of discrimination and relative political powerlessness.
      Very significantly, the Obama administration urges the court in its amicus brief to recognize sexual orientation for the first time as a protected classification. Solicitor General Donald Verrilli will be sharing argument time with the lawyer for the plaintiffs on Tuesday — just as the Eisenhower administration argued for plaintiffs in Brown.
      In the name of judicial restraint, the states are also urging the court now to let the marriage issue play out through the political process — just as the states in Brown defended the rights of local self-government. But a brief filed by current and former officeholders from the four states notes that the court has rejected deference to the democratic process when laws disfavored minority groups.
      As in Brown, the states or some of their supporting groups today are warning of dire consequences from a ruling to nationalize marriage rights for gay men and lesbians. They predict declining marriage rates among opposite-sex couples, increased incidence of out-of-wedlock births, increasing numbers of abortions, and reduced parental bonds with children in straight marriages. The arguments overlook that marriage rates fell and out-of-wedlock births rose long before same-sex marriage was being argued seriously in courts or in legislatures. And the assumptions that underlie the predictions are best described as preposterous.
      The justices do not decide cases by comparing stacks of amicus briefs, of course, but the organizations backing the plaintiffs outnumber and far outweigh those siding with the states. Sixty years ago, the court met its equal-justice responsibility in Brown; the decision in the marriage cases is due by the end of June.

Sunday, April 19, 2015

In Changing Times, Rethink Life Tenure for Justices

      John Roberts was in elementary school when the Supreme Court ruled in 1965 that patent holders cannot collect royalties on their inventions after their patents expire.
      As chief justice 50 years later, Roberts appears to think the ruling is wrong. “The economists are almost unanimous that this is a very bad rule,” Roberts remarked during oral arguments late last month [March 31] in an appeal aimed at overruling the decision (Kimble v. Marvel Enterprises, Inc.).
      The Obama administration urged the justices to keep the ruling on the books, but acknowledged its bad reputation among economists. “The 1960s are often associated with loose economic analysis,” deputy solicitor general Malcolm Stewart conceded.
      Times change, and conventional wisdom changes. But these days the membership of the Supreme Court changes less and less frequently. Justices are younger when appointed, they live longer, and they stay on the bench for the most part until age or health forces them to leave. Just ask Ruth Bader Ginsburg about retirement.
      The average tenure of justices from 1789 to 1970 was about 14 years, according to statistics cited a few years ago by law professors Paul Carrington and Roger Cramton. The average tenure of the justices who have left since 1970 is 26 years, nearly twice as long. Five of the current justices have served together for 20 years.
      The result is an increasing multigenerational gap between the justices and the public. Take Roberts as an example. He was appointed at age 50 as the youngest chief justice since John Marshall was named to the post two centuries earlier at age 45.
      The baby-boomer Roberts began his legal career in the 1980s just as Gen Xers were coming of age. He went on to the Supreme Court in 2005 as the first of the Millennials were graduating from college and professional schools. Ten years later, Roberts appears to be in good health. If he stays healthy, he could easily serve into his late 70s or early 80s, just as his three predecessors did.
      By 2030, the first of the Millennials will be getting their AARP cards. Their children, the Post-Millennials, will be starting to join the workforce after having been educated entirely in the Internet era.
      The United States will be changed in ways that few of us can foresee today. But Roberts will have been living in a judicial bubble for a quarter-century. He will have kept up by reading newspapers and maybe even law journal articles. But to some extent he will remain a product of his formative years: the turbulence of the 1960s and ’70s and the conservative pushback of the ’80s.
      The U.S. Supreme Court is the only constitutional court in the world with lifetime-tenured justices. The Framers saw lifetime tenure as a necessary safeguard for judicial independence, but they wrote Article III when the average life expectancy was much shorter than it is today.
      Lifetime tenure today results in a court that is less and less in touch with the public — not because the justices are unelected, but because they formed their world views in earlier, much different times. Antonin Scalia’s views on gay rights were formed years before Stonewall; Ginsburg inevitably views sex discrimination cases through the lens of the difficulties she faced from the unwelcoming legal profession of the 1950s and ’60s.
      An ideologically diverse assortment of law professors has called for several years for modifying the tenure rule by limiting justices to 18 years of active service on the court followed by “senior status” thereafter. The senior justices could serve on lower federal courts or on the Supreme Court itself in case one of the nine was recused. Within the past year, the proposal has picked up support from, among others, GOP presidential wannabes Rick Perry and Mike Huckabee.
      Every new justice creates a new court, Byron White famously remarked. With four new justices in the past decade, the court is different today than when Chief Justice William H. Rehnquist presided over 11 years of no vacancies. Besides Roberts, the other new justices — Samuel A. Alito Jr., Sonia Sotomayor, and Elena Kagan — have enlivened the oral arguments and occasionally mixed up the voting patterns.
      The 18-year rule would bring new blood onto the court at regular intervals. It would also give the political branches, the president and the Senate, a chance to recalibrate on a fixed schedule. Confirmation battles might de-escalate somewhat if president and Senate both know that another vacancy will arise sooner rather than later.
      Some experts think Congress could enact this change by statute; others think it would require a constitutional amendment. Either way, it’s a long shot.
      Neither political party will see the idea as particularly advantageous. If one party adopts the proposal, the other might reflexively oppose any change. But if it’s time to rethink the economic views of the 1960s, surely it might also be time to take a fresh look at the 225-year-old tenure rule in the light of changing times and changed circumstances.

Sunday, April 12, 2015

Videos Not Enough to Change Police Culture

      The newly installed director of the Secret Service went before a congressional committee in the midst of a national firestorm over scandals at the elite agency charged with protecting the president and other high-ranking U.S. officials. With Congress and President Obama both breathing down his neck, Joseph Clancy still tamped down expectations that he could institute needed reforms quickly. “It’s going to take time to change some of this culture,” a frustrated Clancy told members of a House Appropriations subcommittee on March 17.
      If change is inevitably slow at a high-profile federal agency even under a national spotlight, change is likely to be slow as well for state and local law enforcement agencies under the spotlight because of the recent spate of killings of unarmed civilians at the hands of police officers. Even without reliable national statistics on the number of such episodes or the racial demographics of those involved one prediction seems safe to make: More black civilians will die, needlessly and perhaps unjustifiably, at the hands of white police officers during the next year.
      Advocates of police accountability took encouragement from the most recent episode: the death of the traffic-stopped civilian Walter Scott, shot in the back by North Charleston, S.C., police officer Michael Slager. The five-year veteran was charged with murder in the April 4 death after a bystander’s video recording plainly showed Slager shooting Scott repeatedly as he fled at full running speed.
      The hero of the story is Feidin Santana, a Dominican immigrant on his way to work that Saturday, who pulled out his smartphone after he saw Slager and Scott struggling on the ground. Too late to record the struggle, Santana did capture damning images of Slager firing repeatedly at Scott as he ran, his back turned to the officer.
      Santana turned the video over to Scott’s family even as he worried that his life might be in danger if his role became public. Once the video went viral, Slager was charged with murder on April 7 and fired from the police department. Later, authorities said that even before the video, investigators had suspicions about the much different account of the episode that Slager had given in his official report.
      Videotaping of police encounters was a rarity two decades back when a bystander several floors up captured the beating of civilian Rodney King by Los Angeles police officers in 1992. With camera-app smartphones now widespread, video evidence is not so rare. And if the moves toward police body cameras take hold, video evidence will become the norm instead of the exception.
      Still, videotaping is no silver bullet for the problem of excessive and unjustifiable use of force by police officers. Despite the evidence in the Rodney King case, no Los Angeles officers were convicted in state or federal courts. Eric Garner’s death in Staten Island was captured on video, and the officers cleared by the local grand jury. Even in the new case, the gap in evidence will allow Slager and his attorney to construct a defense; a conviction is by no means a certainty.
      Police accountability cannot be outsourced to the smartphone-carrying public or simply automated by mandatory body cameras for officers. Police culture itself needs to be changed, as police experts emphasized in news coverage last week.
      Seth Stoughton, an assistant professor at the University of South Carolina School of Law, told NPR’s Audie Cornish that police training inculcates a “warrior mentality” in new officers. Videos of officers being beaten or killed teach the new officer the risks of hesitation in encounters with civilians, but Stoughton says the training “dramatically exaggerates the actual dangers of policing.”
      David Harris, a law professor at the University of Pittsburgh and longtime critic of racial profiling, says the North Charleston episode illustrates that police fire their weapons reflexively when encounters go south and expect their departments to back them up. “What it says to me,” Harris told Politico national editor Michael Hirsh, “is that in the culture of that police department this is no problem.”
      A half-century of police reform efforts since the 1960s teaches that local police departments resist change and public pressure is usually too weak to overcome that resistance. Congress and the Clinton administration sought to change that dynamic with a law passed in 1994 that gives the Justice Department authority to investigate police departments for “practices and policies” of violations of statutory or constitutional rights.
      The Obama administration revived use of the law after it had lain mostly dormant for the eight years of the Bush administration. With strong support from Attorney General Eric Holder, the former civil rights chief Tom Perez, now secretary of labor, instituted high-profile investigations of departments from Seattle to East Haven, Conn., and Maricopa County, Ariz., to New Orleans. In Seattle and New Orleans, departments agreed to court-supervised reforms on recruitment, training, and oversight. In Arizona, Maricopa County’s combative sheriff Joe Arpaio predictably resisted.
      The Justice Department, however, can do only so much. The civil rights division’s budget for police accountability was $12.2 million last year, Politico reported. It will take more than that, and more than a few videos, to change the police culture that still today routinely puts black lives at risk.

Monday, April 6, 2015

Fight for LGBT Rights Far From Over


     Gay rights advocates were celebrating last week after they succeeded in blocking or weakening bills that would have allowed businesses to claim a religious right to discriminate against same-sex couples getting married.
     But hold the applause! The victories in Indiana, Arkansas, Georgia, and North Carolina are defensive only. Each of the three is among the majority of states that still today have no laws broadly prohibiting discrimination against LGBT individuals in public accommodations or the workplace. And, even with a likely Supreme Court victory, the battle over marriage equality may not be over; opponents may continue to resist, even if ineffectively.
     Gay rights groups, backed by powerful straight allies, called foul when Republican governors in Indiana and Arkansas signed bills with the seemingly all-American title of “Religious Freedom Restoration Act.” They correctly pointed out that the bills were broader than the federal RFRA by allowing the religious-freedom defense not only against government enforcement actions but also in private disputes – for example, between same-sex couples and anti-gay businesses.
    &nbspIndiana Gov. Mike Pence embarrassingly equivocated on national television when asked by ABC’s George Stephanopoulos whether the bill he had already signed into law would allow discrimination against gays and lesbians. Asked six times, he answered not once. Back home, he held a press conference to deny the accusation: “a smear,” he called it — “baseless,” at that. 
     Supporters of the bill knew better. As the bill was being signed into law, the conservative advocacy group Advance America sent out a release proclaiming, “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!” The group’s leader, Eric Miller, was one of several anti-gay advocates invited to join Pence for the private signing ceremony..
     Pence’s denial could not slow the torrent of calls to change the bill to keep anti-gay discrimination out of it. “Fix It Now!” the usually staid Indianapolis Star urged in a front-page editorial. The NCAA, headquartered in Indianapolis and about to host the men’s college basketball championship, agreed. Angie’s List canceled plans to expand its Indianapolis headquarters. The rock band Wilco canceled a gig. Democratic politicians in several states banned government travel to the Hoosier State.
     The GOP-controlled legislature did what it could to contain the damage by sending Pence a modified bill that specified the law could not be cited top justify discrimination on the basis of sexual orientation or gender. Gay rights advocates were grateful for what they could get, but correctly pointed out that anti-LGBT discrimination was still legal in Indiana except in municipalities, such as Indianapolis, with local LGBT rights ordinances.
      The issue played out in similar fashion in Arkansas, where Republican governor Asa Hutchinson asked for and got changes that paralleled those in Indiana. Hutchinson acted after being urged along by, among others, Doug McMillan, CEO of the Arkansas-headquartered Walmart Corporation. Republican lawmakers in Georgia and North Carolina decided to spare themselves potential embarrassment by shelving similar religious freedom measures.
     Even without religious-freedom laws, photographers, bakers, and florists in several states have refused to service same-sex weddings, acting in the face of state civil rights laws that protect sexual orientation. So far, courts or agencies have rejected their arguments. Elane Photography in New Mexico was sanctioned for refusing to shoot a lesbian commitment ceremony; bakeries in Oregon and Colorado and a florist in Washington State have been found guilty of unlawful discrimination for refusing to cater same-sex weddings.
     Back in 2009, when only four states allowed gay or lesbian couples to get married, religious and social conservatives vowed in the so-called Manhattan Declaration to fight marriage equality no matter what, even to the point of civil disobedience. Today, marriage equality is the law in 37 states, the number increased thanks to an almost uninterrupted string of more than 60 court victories since December 2013.
     The resistance by florists and bakers seems almost laughably feeble, but the pizzeria owner who vowed to provide no pizzas for gay weddings got more than $500,000 in donations for the cause. There is official resistance as well: refusenik clerks in a few states and, more significantly, the Alabama Supreme Court, which has instructed the state’s judges to ignore the federal court ruling that found the state’s same-sex marriage ban unconstitutional.
     Same-sex marriage opponents had their say at the Supreme Court as the week ended, filing more than a dozen amicus briefs on deadline for the justices to read before the oral-argument showdown on April 28. Some of the briefs took a high road of sorts, arguing that the issue was for legislators instead of courts to decide. But some — for example, one filed by the Mike Huckabee Policy Institute — repeated anti-gay shibboleths about public health threats and early mortality among disordered homosexuals.
     The front-page victories in Indiana created a misleading impression of an unstoppable gay rights movement. “The gay rights movement is in such ascendancy,” liberal commentator Mark Shields remarked on the PBS NewsHour. Far from it.
     The LGBT community is still fighting for equal rights and dignity: the red states in the South and Plains have no LGBT rights laws on the books and the Republican establishments show no interest in enacting any. As the radio talk show Michelangelo Signorile points out in the title of his new book, “It’s not over.” But last week’s events suggest that the corner has been turned.