Equal Protection Clause

  • November 4, 2016
    Guest Post

    by Sandra S. Park, Senior Staff Attorney at the ACLU Women’s Rights Project, and counsel on the amicus brief filed by the ACLU et al. in Lynch v. Morales-Santana

    Why does federal law still discriminate against fathers?  And what can the Supreme Court do to address the discrimination?

    These are questions raised in Lynch v. Morales-Santana, an equal protection case that will be argued before the Court on Wednesday. The case challenges a federal nationality statute, first enacted in 1940, that is one of the few in the U.S. Code that explicitly discriminates based on sex. 

    The law provides that when a child is born to an unmarried U.S. citizen mother living abroad, the child automatically becomes a U.S. citizen, so long as the mother previously lived in the U.S. for one year, at any age. In contrast, a U.S. citizen father can transmit citizenship to his non-marital child born abroad only if he resided in the U.S. for many more years, at an age set out by statute. 

    Whether or not Luis Ramon Morales-Santana can remain in the U.S., his home of more than 40 years, depends on whether the Court strikes down the more onerous paternal residency requirements. His father, a U.S. citizen, wed his mother, a Dominican citizen, after Morales-Santana’s birth in 1962, and they moved from the Dominican Republic to the United States.  At the time, the law provided that an unmarried father could transmit U.S. citizenship to his child if he lived in the U.S. for 10 years prior to the child’s birth, five of which must be after the father was 14 years old. Because Morales-Santana’s father left the U.S. just weeks before his 19th birthday, and did not return until after his son’s birth, the Board of Immigration Appeals concluded that he could not satisfy the requirements and thus could not transmit citizenship to Morales-Santana. Had Morales-Santana been born to a U.S. citizen mother with the same history of residency as his father’s, he would be a U.S. citizen today.

  • October 8, 2015
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    The state of Alabama has once again relegated some of its citizens to second-class status.  The confluence of driver’s license office closures and a much maligned voter identification law fosters the dishonoring of Alabama’s black and impoverished citizens in a perpetual cycle of deprivation and struggle.

    The genesis of the recent strife begins with Alabama’s enactment of a voter ID law in 2011, requiring citizens to present a valid, government-issued ID to vote at polls beginning in 2014. One of the most common forms of ID satisfying the state law are driver’s licenses. Pursuant to the state’s own study conducted in 2014, 10 percent of registered voters – 250,000 citizens – lack any form of the required photo ID, and 20 percent of registered voters – 500,000 citizens – lack a valid Alabama driver’s license or non-driver photo ID.

    Ostensibly due to spending reductions in Alabama’s fiscal year 2016 budget, the Alabama Law Enforcement Agency (“ALEA”), of which the Driver License Division is a part, closed 31 part-time, satellite driver’s license offices. As a result of these closures, 28 of Alabama’s 67 counties will not have facilities to issue licenses to first-time driver’s license examinees or out-of-state transplants seeking an Alabama license. Those seeking license renewals may do so at county probate offices or online (yet those options present their own problems).

    Citizens and civil rights defenders decry the closures due to the disproportionate burden massed upon black citizens and the impoverished in the largely rural counties. The closures eradicate eight of the ten counties in Alabama with the highest percentages of non-white, registered voters. Indeed, those eight counties comprise the only counties where more than 75% of the registered voters are black citizens. A refined analysis portrays a more troublesome picture. While 80 percent of the counties with non-white voting majorities suffer the closures, only 35 percent of the counties with white voting majorities bear any consequences (20 of the 57 remaining counties in Alabama), thus leaving 65 percent of the counties with majority-white voters largely unaffected. This disparity in the closures’ impact starkly portrays the inequity in ALEA’s budget cutting.

  • July 31, 2015
    Video Interview

    by Nanya Springer

    In the current political climate, the idea that Congress should pass legislation redistributing wealth and resources is met with abhorrence by conservatives and, often, with apathy by liberals. This was not always the case, argues William Forbath, Associate Dean for Research and Lloyd M. Bentsen Chair in Law at the University of Texas School of Law. At one time, liberals widely viewed economic inequality as a constitutional issue and believed redistributive measures were not only permissible, but constitutionally required to ensure the equal protection of the laws and to promote the general welfare.

    In an interview with ACSblog, Forbath explains that today’s liberals have come to think the Constitution does not speak to the redistribution of resources. This contradicts the views of key historical lawmakers who discussed anti-trust, banking, currency and trade as constitutional issues and who viewed Congress as constitutionally obliged to promote the country’s broad economic wellbeing through redistributive policies. Forbath adds that even before the Equal Protection Clause appeared in the federal Constitution, state constitution guarantees of equal protection focused on protecting the poor from legislation that favored economic elites. “The Constitution needs safeguards against oligarchy,” he asserts. “Ours is an anti-oligarchy Constitution.”

    Noting America’s shrinking middle class and diminishing equality of opportunity, Forbath concludes that “these older generations were right . . . You can’t keep a constitutional democracy or a republican form of government with boundless inequality. You can’t keep it without a broad middle class. You can’t keep it alongside an oligarchic, entrenched economic elite.” Instead he, along with fellow University of Texas Law Professor Joseph Fishkin, promotes a return to the idea that we have a “Constitution of opportunity” ― one that supports a robust middle class and ensures opportunity for all, not just the privileged.

    Watch the full interview here or below.

     

  • April 22, 2015

    by Caroline Cox

    In SalonMarcy Wheeler explains why new reforms governing surveillance are not likely to solve many problems. 
     
    Russell Berman reports for The Atlantic that after a five-and-a-half month wait, the Senate is ready to confirm Loretta Lynch as U.S. Attorney General. 
     
    At the Constitutional Accountability Center's Text & History BlogDavid H. Gans discusses the importance of the Equal Protection Clause in the same-sex marriage cases.
     
    Noah Feldman writes at Bloomberg View that the Supreme Court's decision on Tuesday that police cannot performa a cannot prolong a traffic stop to search for drugs with a trained canine illustrates a growing concern on the Supreme Court with police conduct. 
     
    At NPRNina Totenberg provides further coverage of the Supreme Court's Tuesday decision on canine drug searches during traffic stops.
  • February 10, 2015

    by Nanya Springer

    In recent years, there has been much discussion about whether America is now a “post-racial” society.  The introduction of the first non-white family into the White House was accompanied by some enthusiastic declarations of victory over the scourge of racism.  Observers looked to the president and to other successful minorities and decided that yes, racism is indeed over.

    But focusing on the most successful elements of any demographic group proves little, for wealth has the ability to elevate and to insulate.  One area where this is most evident is in the American criminal justice system.  When navigating the justice system, the ability to hire top-notch legal counsel or to post a significant bond drastically affects the outcome of a case.  This is true for both white citizens and for citizens of color.

    Unfortunately, however, racial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color.  There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.

    The result is that Americans of color face disadvantages at every stage of the criminal justice system.  From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white.