November 2012

  • November 30, 2012

    by Jeremy Leaming

    It’s hard to say why marriage matters, why it is different, Edie Windsor says in an ACLU video documenting her struggle to overcome the federal government’s discriminatory treatment of same-sex marriages. But, she continued, marriage is different and does matter. “It has to do with our dignity,” being able to be who we are openly, she said.

    “It was a love affair that kept on and on and on,” Windsor said in describing her deep, loving and lasting connection to Thea Spyer. The couple, more than 40 years into their relationship and after Spyer received a dire diagnosis related to multiple sclerosis, were married in Canada. When Spyer died in 2007, Windsor was required to pay inheritance taxes since the federal government because of the Clinton era law, the so-called Defense of Marriage Act, does not recognize same-sex marriages. With the help of the American Civil Liberties Union, Edie lodged a lawsuit against DOMA arguing, in part, that it violates the Constitution’s equal protection clause.

    In the fall, the U.S. Court of Appeals for the Second Circuit ruled in favor of Windsor, concluding that DOMA does violate the equal protection rights of lesbians and gay men. Edie’s case, Windsor v. U.S. is one of several the Supreme Court could take for review this term. The justices met in a private conference Nov. 30 where the marriage equality cases could have been considered. SCOTUSblog’s Lyle Denniston reported earlier today that the justices “took no action” on any of the same-sex marriage cases that have wended their way through the federal courts. Denniston notes that nothing has “ruled out the possibility that some actions on same-sex marriage could be announced” on Monday. Or it could be, Denniston continues, that the high court will need more than one conference meeting to “decide how to proceed” on handling the marriage equality cases.

  • November 30, 2012
    Guest Post

    By Jay Stanley, ACLU Senior Policy Analyst

    November 25 marked the 10th anniversary of the signing of the Homeland Security Act, which created the sprawling Department of Homeland Security. Included in this new behemoth agency was another agency that had been created a year earlier, the Transportation Security Administration. It’s worthwhile to take a look back at the short history of this agency.

    The first and biggest conclusion we can reach is that the vast bulk of the increased security that we’ve obtained since 9/11 has been due to two factors: the securing of airplane cockpit doors, and the fact that no planeload of passengers in a hijacked aircraft will ever again sit back placidly and wait to land in Cuba, or whatever. We’ve been saying this for years and it remains true. It’s hard to believe in light of all that has followed, but a few weeks after the 9/11 attacks, the ACLU issued a press release with the headline, “ACLU Applauds Sensible Scope of Bush Airport Security Plan.” What we were reacting to was a set of commonsense steps the administration had taken such as increased baggage screening and securing those cockpit doors.

    In that same press release, however, we were already noting that far more dubious and intrusive ideas were beginning to circulate. Unfortunately, in the decade that followed we confronted more such proposals and programs than we ever imagined at the time. It’s worth a quick review of some of the lowlights:

    • November 29, 2012
      Guest Post

      By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


      John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

      1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

      Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.

    • November 29, 2012
      Guest Post

      By Dr. John R. Koza, Chairman of National Popular Vote


      The Constitution provides a built-in mechanism for fixing the shortcomings of the current system of electing the president.

      The major shortcoming of the current system of electing the president is that four out of five states, and four out of five Americans, are politically irrelevant in presidential campaigns. After being nominated in 2012, President Obama conducted campaign events in just eight states, and Governor Romney did so in only ten. Just ten states received 98 percent of the $940 million spent on advertising by the two campaigns and their supporters.

      These problems are caused by state winner-take-all statutes (that award all of a state’s electoral votes to the candidate receiving the most popular votes in each separate state). Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the concerns of voters in states where they are comfortably ahead or hopelessly behind. The common feature of the ten states that received attention in the 2012 presidential campaign was that the eventual winner received 53 percent or less of the state’s vote -- that is, they were closely divided “battleground” states.

    • November 28, 2012

      by Jeremy Leaming

      While lawmakers in Washington are consumed with reaching a budget deal, avoiding the so-called fiscal cliff, the president -- also engaged in the budget battle -- is nonetheless moving ahead on other fronts, such as trying to fill vacancies on the federal bench, which spiked during his first term largely because of Sen. Mitch McConnell’s obstructionist ways.

      The president is also continuing his efforts to diversify a bench that is still dominated by white men. Among the president’s recent nominations is Nitza I. Quiñones Alejandro for a seat on the U.S. District Court for the Eastern District of Pennsylvania. If confirmed she would be the “first openly gay Hispanic woman to serve on the bench,” LGBTQ Nation reports. The president’s efforts to create a more representative federal bench contrasts with House Republican leaders who were unable or unwilling to select a woman for the chamber’s major committees, instead,  as noted by The Huffington Post’s Jennifer Bendery, all the new committee chairs are white men.

      People For the American Way’s Marge Baker lauded Obama’s judicial selections, saying they “are emblematic of the president’s commitment to nominating qualified, diverse nominees to the federal bench.”

      It appears, however, that Republican leaders in the Senate, for the most part, are not in any rush to fill the vacancies, even though 34 of them are deemed judicial emergencies, meaning the courts are overworked, understaffed. With too many vacancies and overworked judges it makes it incredibly difficult for the justice system to function.

      But more than 23 national public interest groups are urging Senate leaders to stop dawdling on judicial nominations. In a Nov. 27 letter to Sen. Majority Leader Harry Reid and Minority Leader McConnell, the groups say that 19 pending nominations should be voted on before the next Congress.