January 2012

  • January 3, 2012
    Guest Post

    Over at The Root, University of Maryland Law Professor Sherrilyn Ifill lists some of her picks for "The Best and Worst of 2011” in “Race and the Law.” She continues her list below, with some additional selections from this past year.


    Best Department of Justice Action: The DOJ’s decision to go after Countrywide financial for discriminatory lending practices, culminated last week in a massive $335 million settlement. The action revealed that Countrywide had discriminated against at least 200,000 African American and Latino borrowers, by either steering minority borrowers with good enough credit to obtain prime lending loans into costly sub-prime loans, or by offering sub-prime loans with harsher lending terms to black and Latino borrowers, than to white borrowers with comparable credit profiles. This case is so important because the effort by conservatives to paint the financial crisis as the result of sub-prime lending to minorities, has glossed over the fact that minority borrowers were largely victims, not beneficiaries, of sub-prime loans. Even within the sub-prime market, Countrywide and other lenders recognized that even more profit could be made by falling back on that old American standby – racial discrimination.

    Worst Law Enforcement Official: Sheriff Joe Arpaio is known for his tough anti-illegal immigrant position in Maricopa County, Ariz. Now the Department of Justice has cited the pugnacious sheriff for racially targeting Latinos in his sweeps of communities in which his police force seeks out undocumented immigrants. The DOJ report, the result of a nearly three-year investigation, charges the Sheriff with fostering a “culture of bias” in law enforcement in the county. The unrepentant, nearly 80 year-old Sheriff has called the DOJ report “politically motivated,” and shows no signs of backing down.  Instead, he has announced his endorsement of Republican presidential candidate Rick Perry and vows to run for a fifth term in office. Latinos in Phoenix, where Arpaio has ruled the streets with the kind of aggressive swagger of Bull Connor, have filed a federal lawsuit charging the sheriff with ignoring the Fourth Amendment’s requirement that a police officer have probable cause before stopping and searching criminal suspects.

    Best Law Enforcement Official: Assistant Attorney General for Civil Rights Tom Perez  has restored the Civil Rights Division of the Justice Department to its rightful place at the federal government’s premier civil rights law enforcement organization. Lifting the Department from the depths to which it had sunk during the Bush years, when the likes of Monica Goodling and Bradley Schlotzman turned the Department into a repository for “loyal Bushies” with no demonstrated civil rights experience, Perez has aggressively focused the Department on its core mission – enforcement of our federal civil rights law.  Under Perez the Civil Rights Division has taken on the discriminatory lending practices of Countrywide Financial [see above], is investigating and challenging police corruption and brutality in departments from Puerto Rico  to Portland, and denied permission to South Carolina to impose government-issued photo ID requirements as a prerequisite to voting. Perez is leading the most robust, productive Civil Rights Division in decades.

  • January 3, 2012
    Guest Post

    By Steve Sanders, who teaches Sexuality and the Law, Family Law, and Constitutional Litigation at the University of Michigan Law School.


    Rick Santorum, the former Pennsylvania senator who currently sits near the top of the Republican presidential field, raised eyebrows over the weekend for comments to NBC’s Chuck Todd on same-sex marriage. It’s old news, of course, that Santorum opposes such marriages (he has compared them to child abuse and bestiality). What was noteworthy about these latest comments was Santorum’s casual observation that, under the sort of federal ban he supports, not only could new marriages not be performed, but all existing same-sex marriages would be nullified. 

    This comment largely disappeared into the rivers of hype and frivolousness coming out of this year’s Iowa caucuses. Nonetheless, it gives us the opportunity to think seriously about the difference between marriage creation and marriage nullification, and whether they differ as matters of civil rights and liberties. I address this topic in a forthcoming article in the Michigan Law Review titled, “The Constitutional Right to (Keep Your) Same-Sex Marriage.” 

    If a federal constitutional ban on same-sex marriage were approved, Santorum was asked, “What would you do with same-sex couples who got married? Would you make them get divorced?” He replied, “Well, their marriage would be invalid. I think if the Constitution says ‘marriages are this,’ then people whose marriage is not consistent with the constitution….” At that point, he literally shrugged. (See the video here.)

    Granted, Rick Santorum is no one’s constitutional scholar. Still, it is stunning when someone who is being taken seriously as a presidential candidate (at least for this week) literally shrugs at the idea that the federal government might unilaterally void more than 130,000 perfectly legal marriages. After all, as a federal court observed in 1949, the “policy of the civilized world, is to sustain marriages, not to upset them.” Imagine the indignities and the hellish disruptions to lives, children, and property rights that Santorum’s policy would create. 

    Then, ponder the fact that right now we have laws in a majority of states that do pretty much the same thing.