Equality and Liberty

  • April 15, 2014
    Guest Post

    by Nicole Austin-Hillery, Director and Counsel-Washington Office, The Brennan Center for Justice

    The right to vote is at the heart of our American Democracy. Political participation by citizens is the great equalizer – it is the one thing that allows all Americans, no matter how powerful or weak, to make decisions about who will lead and who will help to advance their interests and protect their families. On April 10, Congress took an important step towards ensuring that this crucial right becomes available to even more Americans. Sen. Ben Cardin (D-Md.) and Rep. John Conyers (D-Mich.) introduced the bi-cameral Democracy Restoration Act (DRA). This important legislation would restore the right to vote in federal elections to the previously incarcerated immediately after their incarceration period is complete. Doing so would enable these individuals to resume the right and responsibility inherent in our role as Americans – asserting our voice through the ballot box.

    The DRA was first introduced in 2009 by former Sen. Russell Feingold. Previously, the bill received strong support, but never quite enough to become a reality. This time, however, is different. There is an enthusiastic and bi-partisan movement underway to reform those parts of our criminal justice system that do not work.  We can see this at the national as well as the state level:  Congress is considering reforming the federal sentencing structure to make sentences fairer in an effort to help eliminate mass incarceration; the Department of Justice has instituted a "Smart on Crime" initiative that would result in better decision-making by prosecutors; and several states, most notably Kentucky, are considering legislation that would restore voting rights to the formerly incarcerated in its state prisons. Other states have also made significant changes to their laws to open up the franchise to the formerly incarcerated, most notably in Delaware, and Virginia – a state that had previously been cited as having one of the most draconian felon disfranchisement laws on the books. So the moment to finally restore voting rights to the formerly incarcerated, who have paid their debts for their crimes, is now.

    Unlike other attempts to restore voting rights, the DRA is the most comprehensive effort. Under the legislation, once an individual has completed his or her incarceration period, their right to vote in federal elections will be automatically restored.  Individuals will not be limited because of any ancillary issues related to their incarceration such as outstanding fees and fines or the fact that they have been released from prison but remain on probation. This is a significant feature of the DRA.

  • April 15, 2014
    Guest Post
    by Nora Gay, President-elect, Vice President of Membership, ACS University of Texas at Austin School of Law, Student Chapter
     
    “But it was a proclamation, it was not a fact.”
     
    The words of President Lyndon Baines Johnson echoed at the beginning of each program of the Civil Rights Summit in the LBJ Auditorium last week in Austin, Texas. A montage of historic photographs followed onscreen to a soundtrack of songs about change or progress mixed with other recordings of LBJ’s iconic words. I had the privilege of attending the panels on Wednesday and Thursday as well as the address by former President Bill Clinton and the keynote address by President Barack Obama.
     
    I have started to realize that when commemorating the anniversary of certain laws or court decisions like the Civil Rights Act, or last year, with Gideon v. Wainwright, it becomes more than simply a celebration; it is an evaluation of how far we have come and how far we must go, and it is a call to action. As President Clinton said in his speech, saying “thank you” to the politicians and activists who made the signing of the Civil Rights Act possible is not enough.
     
    University of Texas’ President Bill Powers introduced the Summit’s panels by talking about UT’s involvement with civil rights. Powers acknowledged that UT has not always been on the right side of history, and in fact the university played a role in stalling “separate but equal” in Sweatt v. Painter in 1950. Today, the university awaits the a decision by the U.S. Court of Appeals for the Fifth Circuit in Fisher v. University of Texas that was vacated and remanded by the Supreme Court last year. “We stand ready to defend diversity.”
  • April 15, 2014
    Guest Post
    by Nora Gay, President-elect, Vice President of Membership, ACS University of Texas at Austin School of Law, Student Chapter
     
    “But it was a proclamation, it was not a fact.”
     
    The words of President Lyndon Baines Johnson echoed at the beginning of each program of the Civil Rights Summit in the LBJ Auditorium last week in Austin, Texas. A montage of historic photographs followed onscreen to a soundtrack of songs about change or progress mixed with other recordings of LBJ’s iconic words. I had the privilege of attending the panels on Wednesday and Thursday as well as the address by former President Bill Clinton and the keynote address by President Barack Obama.
     
    I have started to realize that when commemorating the anniversary of certain laws or court decisions like the Civil Rights Act, or last year, with Gideon v. Wainwright, it becomes more than simply a celebration; it is an evaluation of how far we have come and how far we must go, and it is a call to action. As President Clinton said in his speech, saying “thank you” to the politicians and activists who made the signing of the Civil Rights Act possible is not enough.
     
    University of Texas’ President Bill Powers introduced the Summit’s panels by talking about UT’s involvement with civil rights. Powers acknowledged that UT has not always been on the right side of history, and in fact the university played a role in stalling “separate but equal” in Sweatt v. Painter in 1950. Today, the university awaits the a decision by the U.S. Court of Appeals for the Fifth Circuit in Fisher v. University of Texas that was vacated and remanded by the Supreme Court last year. “We stand ready to defend diversity.”
  • March 28, 2014
    Guest Post
    by Sarah Lipton-Lubet, Director of Reproductive Health Programs, National Partnership for Women & Families
     
    This week, the U.S. Supreme Court heard oral argument in two cases brought by for-profit corporations challenging the Affordable Care Act’s (ACA) birth control benefit, which requires that health plans include coverage for contraception—a basic health service that 99 percent of women use at some point in their lives. Hobby Lobby, a national chain of arts and crafts stores, and Conestoga Wood Specialties, a furniture manufacturer, argue the ACA’s requirement that health plans cover contraception violates their religious liberty rights by forcing them to participate in a process that ends with women accessing and using birth control.
     
    Hobby Lobby and Conestoga Wood Specialties are pursuing a radical proposition: that corporations have a right to impose religious beliefs on their employees by withholding benefits otherwise legally guaranteed to the women who work there. As others have noted, a win for the companies in these cases could open the door to all sorts of claims that corporations can opt out of laws that have helped shape our society and matter deeply to Americans, from Social Security to labor and civil rights laws. We have already seen a preview of what this could mean for the rights of LGBT individuals and families in the Arizona bill vetoed by Gov. Brewer last month.
     
    It is important to note that, in the past, courts have rejected claims that religion-based arguments could allow restaurants to discriminate on the basis of race, or businesses to ignore wage-and-hour laws, for example. But several lower courts have ruled in favor of corporations in the birth control cases, and several justices seemed to favor their position this week.
     
  • March 25, 2014
    Guest Post
    by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State
     
    * Americans United filed a brief in defense of the contraceptive-coverage regulations in Hobby Lobby/Conestoga Wood, and represents three female university students in defense of another lawsuit filed against the regulations by the University of Notre Dame.
     
    This morning, I attended the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. In these two consolidated cases, the for-profit corporations Hobby Lobby and Conestoga Wood claim that they have a right to a religious exemption from federal regulations that require health-insurance plans to include coverage for contraceptives.
     
    The corporations’ principal claim is based on the Religious Freedom Restoration Act of 1993 (“RFRA”), which generally provides that the federal government cannot substantially burden a person’s religious exercise unless it has a compelling interest in doing so. RFRA passed the House of Representatives unanimously and the Senate by a vote of 97 to 3. 
     
    As Justice Ginsburg suggested at today’s argument, it is inconceivable that RFRA would have received such broad support, let alone passed at all, if the members of Congress who voted for it had had any inkling of how opponents of the contraceptive-coverage regulations would attempt to use RFRA today. Represented by former Bush administration Solicitor General Paul Clement, Hobby Lobby and Conestoga Wood have given RFRA such a broad interpretation that it would give religious entities carte blanche to override individual rights not just in the contraceptive-coverage arena, but in a virtually unlimited array of contexts.
     
    Clement’s case begins with the proposition that for-profit corporations can somehow exercise religion and therefore be entitled to RFRA’s protections. Justice Sotomayor asked how does a for-profit corporation exercise religion, who in the corporation decides what the corporation’s “religious beliefs” are, and how much of the corporation’s activities must be religious for RFRA to apply. Justice Scalia subsequently indicated that it would be sufficient if those who control the corporation merely assert what the corporation’s “religious beliefs” are for such “beliefs” to be protected under RFRA.