June 2016

  • June 30, 2016
    Guest Post

    by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

    The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve. 

    The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases. 

    Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

    As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.

  • June 30, 2016
    Guest Post

    by Marium Durrani, Public Policy Attorney, National Network to End Domestic Violence

    On June 27th, the Supreme Court made clear what most people can agree is a pretty uncontroversial idea: that domestic abusers shouldn’t have access to guns. Voisine v. United States  marked a victory celebrated by domestic violence advocates, victims and allies around the country. The Court held that a ‘reckless domestic assault’ is a misdemeanor crime of violence, for the purposes of prohibiting access to firearms.

    To understand this case, it’s important to understand the historic passage of the Lautenberg Amendment in 1996, a federal law prohibiting a person who has been convicted of a domestic violence crime from owning a firearm. The corresponding statute, 18 U.S.C. 922(g)(9), states: “It shall be unlawful for any person-who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The law reflected the reality that many perpetrators of domestic violence are only convicted of misdemeanors. Moreover, studies show these misdemeanor perpetrators often escalate the severity of their abuse over time, and the presence of a firearm can increase chances of homicide by nearly 500 percent. Recently two cases, Castleman and Voisine, have challenged the Lautenberg amendment, seeking to redefine the meaning of what domestic violence is. Each time such cases rise to the Supreme Court, domestic violence advocates wait with bated breath for a decision that could uphold or dismantle an incredible tool used to keep survivors safe.

    In 2001, Castleman was charged with “intentionally or knowingly caus[ing] bodily injury” to the mother of his child and then was found selling firearms on the black market. Castleman’s attorneys argued that his abuse was not severe enough to count as domestic violence. The Supreme Court disagreed and held that offensive touching satisfied the “physical force” requirement of the federal statute. This was a victory for victims and their families.

    Just as Castleman was resolved, Voisine rose to the Supreme Court. The Voisine case began in 2002 and 2003 for William Armstrong III and Stephen Voisine respectively, when each petitioner was convicted of assaulting their domestic partners. When Voisine was arrested in 2009 for killing a bald eagle, he was charged for violating § 922 (g)(9). In 2010, while enforcement officers searched the Armstrong residence for drugs and drug paraphernalia, they found a stockpile of weapons and ammunition, leading to his conviction under the same federal statute for firearm possession.

  • June 30, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School

    Last year, in Glossip v. Gross, Justice Stephen Breyer supported his point that the death penalty had become truly unusual in America by noting that “the number of active death penalty counties is small and getting smaller” such that “[o]nly a handful of America’s 3,143 counties use the death penalty with any regularity.” Fast-forward one year. Within the past month, the Court has addressed four death penalty cases stemming from the fifteen active death sentencing counties that Breyer highlighted.

    The Court added two of the cases to its merits docket for next term, Moore v. Texas and Buck v. Texas, both out of Harris County, once called the buckle of the death belt. It reversed the death sentence in Lynch v. Arizona, a case out of Maricopa County, the jurisdiction with the second most death sentences in America since 2010. And, finally, in Tucker v. Louisiana, Justices Breyer and Ginsburg renewed their invitation for the Court to revisit the Constitutionality of the death penalty in a dissent from the denial of certiorari which queried “whether “geography” and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence.

    What is going on in these counties? Population and homicide rates explain some of the differences in a few of the largest counties. But even in those places there is a lot left to be explained. Here’s a hint:

    A prosecutor named Dale Cox obtained the death sentence against Lamondre Tucker. Cox was responsible for 1/3 of the death sentences in Louisiana between 2010 and 2015. He infamously told a reporter that we “need to kill more people”, told defense lawyers in a capital case that he wanted to “cut their f---ing throats”, and told jurors that Jesus demanded that people like the defendant have a millstone wrapped around their neck and be thrown into the sea. Therefore, Breyer and Ginsburg would have been correct if they had written: it appears as though the personality and predilections of the prosecutor and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence. The same statement could be said for Lynch, decided the same day as Tucker. Juan Martinez was the trial prosecutor in that case. He is one of a trio of prosecutors that account for 28 percent of Arizona’s death sentences over the past decade. The Arizona Supreme Court has called out Martinez by name, found that he committed misconduct in at least two previous capital cases, and identified at least seventeen instances of Martinez’s inappropriate behavior in the Lynch case alone. And both Bobby Moore (his original sentence) and Duane Buck were sentenced to die during the Johnny Holmes era in Harris County.

  • June 29, 2016
    Guest Post

    by Linda Goler Blount, President & CEO, Black Women’s Health Imperative 

    Women, the highest court in the land has reaffirmed your constitutional right to the abortion access! This week, the Supreme Court ruled a Texas law, which requires abortion clinics to meet the standards of outpatient surgical centers and doctors to have admitting privileges at nearby hospitals, unconstitutional. 

    Supporters of the Texas Targeted Regulation of Abortion Providers, or TRAP, law said it was necessary in order to protect women’s health and safety. But all it did was make it more difficult for women - especially poor women and women of color - to get an abortion. Since the law took effect in 2013, dozens of clinics shut down, forcing some women to drive hundreds of miles away for the procedure, or even to attempt unsafe, illegal, and sometimes deadly home abortions.

    This week’s landmark decision in Whole Woman’s Health v. Hellerstedt means several clinics will reopen, removing unnecessary barriers to abortion access for the five million women of reproductive age in Texas. Most importantly, it sets a legal standard that will impact similar laws across the country.

    The fight isn’t over yet, though. The Hyde Amendment is still blocking some women from accessing their constitutionally protected right to an abortion. It prohibits women who receive health insurance through the government from using those federal funds to pay for abortions. The amendment primarily affects low-income women who are on Medicaid. These women cannot afford to pay for an abortion out of pocket. And if they have children they cannot afford, it's likely they - and their children - will remain in poverty for the rest of their lives.

    So as we celebrate this week’s victory, I encourage you to support the Black Women's Health Imperative in our efforts to overturn the Hyde Amendment and get the EACH Woman Act passed. We must ensure all women receive the abortion care they need and deserve.

  • June 28, 2016
    Guest Post

    by Sarah Warbelow, Legal Director, Human Rights Campaign

    Last month marked the 20th anniversary of Romer v. Evans, the landmark Supreme Court decision that laid the legal groundwork for some of our community's biggest victories including US v. Windsor and Obergefell v. Hodges.  In Romer, the Supreme Court determined that a Colorado anti-gay voter referendum violated the Equal Protection Clause of the Constitution.  Several Colorado municipalities had passed protections from discrimination on the basis of sexual orientation in the employment, housing, healthcare and other basic services.  In response, in 1992 Colorado voters adopted Amendment 2 to the Colorado Constitution, which precluded these protections and any judicial, legislative or executive action designed to protect LGB people from discrimination.  The Court ruled Amendment 2's blatant targeting of LGB people for discrimination to be a clear violation of the Equal Protection Clause of the Constitution.

    In addition to strengthening the legal foundation for LGBT civil rights in the Constitution under the 14th amendment, Romer also sent a powerful message to lawmakers and courts that homophobia, or as the court described it a "bare... desire to harm a politically unpopular group," can never be a legitimate state interest.  

    The precedent that Romer created is clear.  Hate must not be used as the basis for lawmaking.  It illustrates the critically powerful role of the Court as designed by our nation's founders to facilitate a genuine balance of powers within our democracy and to safeguard individuals from the so-called tyranny of the majority.  As James Madison described in the 51st edition of  the Federalist Papers,  "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure."  

    Two decades after Romer, and over two centuries since the publication of the Federalist Papers these words remain frighteningly relevant.  Today we can look back on what has been the most pro-equality administration in this nation's history.  Under President Obama's leadership the federal government has implemented a myriad of federal protections in heatlhcare, employment, and housing.  Many states and cities across the country now provide local protections as well. However, the anti-LGBTQ animus that fueled Amendment 2 in Colorado in 1996 continues to be a powerful force in American politics.  As we have seen in North Carolina over the past months there are powerful forces transforming "bare animus" into state sanctioned bullying, particularly targeting transgender people.