Human Rights at Home Blog

Human Rights Scholars Reflect on the Past Year: A November Election Anniversary Series

[Editors Note:  Today we begin a series of Scholarly Voices posts reflecting on the past year since the 2016 election.  Why?  We, the editors, realized that we were exhausted from the political rollercoaster of the past year, and that we needed to find a way to re-charge our batteries.  We asked some of our wisest colleagues if they could contribute reflections on the year since the 2016 election, thoughts about where we find ourselves at this moment, and what the future might hold.  Happily, many of them agreed to write!  We begin this series with a contribution from Fran Quigley, who directs the Health and Human Right Clinic at Indiana University McKinney School of Law and the advocacy group People of Faith for Access to Medicines. His new book is Prescription for the People: An Activist’s Guide to Making Medicines Affordable for All.]

by Fran Quigley, Indiana University McKinney School of Law

For the last few years, I have been happily locked into hedgehog (“the fox knows many things, the hedgehog one big thing”) mode. My advocacy, writing, and even much of my teaching have all been focused on the crisis in access to medicines, where millions are suffering and dying because the medicines to treat them are priced out of reach.

In this realm, where profits have trumped people under all of the recent U.S. political regimes, one does not need the recent elections to find cause for despair.

               But expressing despair is not the assignment our esteemed blog editors have handed us. They ask for hope, and hope can be found in this hedgehog’s nest, too.

            Start with the Trump phenomenon itself. In drug pricing as in other populist issues, Trump echoes the deep frustration with this country’s profound inequality and the rigged economic system that perpetuates it.

Polls show large majorities of Republicans and Democrats alike are furious about drug companies using government-granted monopolies on government-discovered medicines as a launching pad for price-gouging.  And those same majorities want government to do something about it. Trump taps into that frustration with his rhetoric, saying the drug companies are “getting away with murder,” and pledging big changes.

Of course, we know better than to believe that Trump will actually pursue meaningful action to back up his screeds. In fact, he has stocked his staff with pharma industry veterans who are working to create an executive order on drug pricing that would do far more harm than good.

But there is hope in the fact that he feels the need to repeatedly claim he is addressing the imbalance between corporate power and individual needs. For us human rights activists, the growing popular recognition of this raw deal is fodder for something more meaningful than a presidential tweet—something like the long-overdue U.S. recognition of health as a human right, not a commodity to be auctioned off for the few who can afford it.

A second reason for hope in the access to medicines world is the seizing of reform initiative at the states level. While multiple drug pricing proposals go nowhere in Congress, states are feeling the budget pinch from skyrocketing costs to their Medicaid programs, and hearing up-close from struggling constituents. So the laboratories of democracy have fired up their bunsen burners hot enough to singe Justice Brandeis’ eyebrows.

Just this year, Nevada enacted a new insulin pricing transparency law, Maryland empowered its attorney general to sue generic drug manufacturers if their prices rise more than 50% in a year, California passed a requirement for pharmaceutical companies to give notice and justify large price increases, and New York created a de facto cap on the prices it will pay for drugs under its Medicaid program. These are just a few of more than 100 pieces of legislation on prescription drug pricing introduced in state legislatures in 2017 alone.

And guess what? Most of the state-level action on drug pricing is a bipartisan effort. An increasing number of free market Republicans are growing weary of defending a pharma industry dependent on government-imposed patent monopolies and no-negotiation bulk purchases from the U.S. government.

So there you have it. There is optimism to be found in the Trump administration, state government actions, and the stances of political conservatives. Just think of the inspiration we can derive from the growing grassroots activism for access to medicines by patients themselves, healthcare providers and labor unions.

Even in these dark days, we are still able to fill our prescription for hope.     

[Eds:  Want more?  The second post in the series is here!]

 

Enemy of Mankind

No, it's not what you're thinking!  This . . . is about a new resource for US human rights teaching.

The NPR radio podcast program "More Perfect" has posted an excellent episode focused on the Alien Tort Statute, titled Enemy of Mankind.  The program explains the colorful history of the venerable ATS, then flashes forward to the 2d circuit case of Filartiga v. Pena and works through the case with interviews of Filartiga family members and other relevant background.  Finally, the podcast makes clear the stakes in Jesner v. Arab Bank, recently argued before the U.S. Supreme Court.  All in all, a great platform for launching classroom discussions of the ATS.

If you aren't familiar with More Perfect, check it out.  There are episodes available on the death penalty, Korematsu, Dred Scott, gerrymandering, and other important topics relating to the Supreme Court's docket today.

 

A Call for Homelessness To Be A Protected Class for Human Rights Cities

Historically, Cambridge, MA has been a proactive Human Rights community.  The city has declared many protected classes in the city.  Among them are Race, Color, Sex, Gender Identity and Disability.  A call has been made to add homelessness/homeless to the city's protected classes.  Those who are homeless experience discrimination in nearly every aspect of their lives.  Without a home address, those who are homeless face discrimination in employment, public benefits, and a multitude of other advantages that those with residences more easily attain.  Obtaining a photo ID can be insurmountable in some locations due to cost and lack of accessibility to state authorities who issue identification documents.  

We know that those who are homeless are more vulnerable to violence.  Over half of women who are homeless report already having been in abusive relationships.   Once living on the streets, those women join others who are homeless in being vulnerable to random, vicious attacks.  The proposed addition to the Cambridge laws would elevate attacks on the homeless to hate crimes.  

Other human rights cities might consider the same or similar protections for the homeless.  Given the proposed changes to nation's tax code and the resulting reduction in funding for services, we can expect more of our residents to experience homelessness.  Municipalities need to protect this particularly vulnerable class and prepare for  the rise in the homeless class in coming months and years.

 

We Are Witnesses

Produced by the Marshall Project, We Are Witnesses is a collection of short videos describing the impact that the criminal justice system has on those who encounter it.  The videos record judges, police, family members of those who have died in the system, ex-prisoners and others whose lives are changed through contact with the massive and often cruel process. 

Erica Garner is one of those who speaks to the camera describing how she arrived at the scene of her father's death. As Jennifer Gonnerman reports:  "These testimonials inevitably prompt questions of culpability-as well as the uncomfortable realization that the "we" in "We Are Witnesses" may apply not only to the individuals speaking here but to us all."

Ethics and Human Rights in U.S. Prisons

Coming up:  November 29- December 1, 2017, Behind Bars: Ethics and Human Rights in U.S. Prisons, at the Harvard Medical School campus in Boston, MA. 

Here's the conference background:

    The United States leads the world in incarceration. The “War on Drugs” and prioritizing punishment over rehabilitation has led to mass imprisonment, mainly of the nation’s most vulnerable populations: people of color, the economically disadvantaged and undereducated, and those suffering from mental illness. Although these social disparities are striking, the health discrepancies are even more pronounced. What can be done to address this health and human rights crisis?

    This conference will examine various aspects of human rights and health issues in our prisons. In collaboration with educators, health professionals, and those involved in the criminal justice system—including former inmates, advocates, and law enforcement—the conference will clarify the issues, explore possible policy and educational responses, and establish avenues for action.

For more information and to register, click here.

Positive Women's Network

October is Domestic Violence Awareness Month. 

While all women can be the targets of abuse, those with disabilities or other vulnerabilities are at higher risk of being targeted by those who are abusive.

The Positive Women’s Network provides support and advocacy for women living with HIV/AIDS.  The PWN “works to achieve HIV-related policies and programs grounded in gender equity and human rights.” The PWN reminds us  of just how vulnerable this population is. 

Women living with HIV are twice as likely to experience intimate partner abuse and five times as likely to experience lifetime sexual assault as the general population of women.

Transwomen are those at the highest risk for HIV in the US. They are physically abused and the targets of hate crimes at a much higher rate than the general population of women. 

Disclosure of HIV status can increase vulnerability to violence, including murder. 

Women living with HIV have consequences men do not.   Loss of custody of children, and presumptions that promiscuity was the source of the HIV infection are but a few of the collateral consequences women with HIV face.  Not surprisingly, women living with HIV are five times more likely than other women to suffer from PTSD.  While treatment of the physical symptoms of HIV may be at a relatively advanced stage, other difficulties faced by positive women are not so easily addressed, and implicate diminishment of their human rights.  Access to proper mental health care and parenting support is often missing in their lives.  Discrimination in housing and employment remains a serious problem, compounded by race and poverty.

Women’s advocacy has been stronger since the last presidential election, but women living with HIV remain a hidden population.  Positive Women’s Network is one of a handful of organizations whose purpose is to support women living with HIV and to empower them to address the root sources of power imbalance.  PWN has a plan to root out HIV and the discrimination the condition brings.  “We recognize that creating sustainable long-term solutions requires changing who’s in power and how power is held. We value decision-making processes that seek consensus and that prioritize those most impacted by the decision.” 

Sexual Harassment and Human Rights

In theory, the U.S. has relatively strong federal prohibitions on sexual harassment in workplaces, schools, and government sites with states providing even broader protections from sexual harassment in any public accommodations.  But as recent revelations about Harvey Weinstein indicate -- alongside the public's tolerance of Donald Trump's foul and objectifying words about women -- laws alone are not enough.  Women's own solidarity is a critical component of holding perpetrators of sexual harassment accountable for their discriminatory actions and creating non-discriminatory spaces.

Still, laws can be a basis for solidarity and common understandings of what's wrong and unfair.  UN Women has a useful webpage that sets out the various sources of international law on sexual harassment, including both worldwide and regional instruments that speak to the issue.

In a few short months, the Women's March for Human Rights of 2017 grew from a back-of-the-envelope idea to an international demonstration of women's solidarity.  The #MeToo wave is an outgrowth of this dramatic show of women's strength, and a confirmation that the Women's March changed, at least marginally, both women's own perceptions and the reality of their collective power.   

Redress and Reparations: A Call for Papers

 

Tulane (New Orleans) will host a March 16-17, 2018 international conference on "Regimes of Redress and Reparations, Transitional Justice, and the Rule of Law."  The conference organizers are seeking scholarly contributions for this multidisciplinary event. The conference announcement reads:

The organizers invite scholars and activists working on issues related to racial reconciliation, transitional justice, historical memory, regimes of redress, and the rule of law to participate in a two-day conference focused on these themes. The conference will be both transnational and interdisciplinary in scope. Interdisciplinary synergies will be created through the inclusion of experts from regions that have experienced racial and ethnic oppression and are in the process of achieving (or have successfully achieved) reconciliation through the establishment of the rule of law, norms of redress, and cultures of remembrance. 

The two-day conference will consist of four to six panels based on submitted proposals, as well as at least one keynote address and one plenary session composed by the organizers.  We encourage those who are interested in presenting a paper or organizers.  Submissions should be made to [email protected] and have the words "Redress Conference" in the subject line.  Abstracts for panels and papers are due by January 19, 2018.

 

 

 

 

 

Court Strikes Down Gender Segregation in UK Schools

 Barrister Claire McCann writes in the Oxford Human Rights Hub about a recent United Kingdom Court of Appeal case concluding that sex segregation in education is discriminatory.  According to McCann, "[i]n HM Chief Inspector of Education, Children’s Services and Skills v Al-Hijrah School, the UK Court of Appeal has concluded that sex segregation in education is discriminatory. Al-Hijrah school is a voluntary aided co-educational Islamic faith school in Birmingham which teaches children aged 4 to 16.  From the age of 9, boys and girls are separated on arrival and are taught and go about their school lives entirely separately; eating, undertaking sporting and other school activities and even walking along the corridors separately, with no opportunities to mix or socialise with each other.  Sex segregation in mixed schools is highly unusual but not unprecedented:  approximately 25 such schools exist in the UK (all faith schools, but Jewish and Christian as well as Islamic).  Last year, Ofsted [the Office for Standards in Education] concluded that the gender segregation at Al-Hijrah School was discriminatory even though both sexes had almost identical access to the full curriculum. The High Court supported the school’s right (in accordance with parental wishes) to segregate its pupils.  However, on October 13, the Court of Appeal decided that the school was in breach of the Equality Act 2010 by reason of direct sex discrimination.  It is understood that the school will not be seeking to appeal to the Supreme Court."  For more of McCann's analysis, click here.

 

 

Before 5:00 am

 

Jonathan Todres

The shuttle to Logan airport picked me up at 4:40 am. I had given a presentation the day before and was returning home early in time to teach my afternoon class. If you haven’t been on the road before 5:00 am, I recommend it for only one reason:  it provides a valuable reminder of how many people work really hard. In the darkness of that hour, while most people are sleeping and most businesses are closed, you'll come across overnight desk clerks at hotels, shuttle drivers, 24-hour gas station attendants, long distance truck drivers, and others working through the night.  It has been a long time since I worked all night, but I recall the toll it takes.  And for some people, that night shift is one of two jobs they’ll work that day. I suppose, in this bizarro world of today’s politics, I expected to acknowledge that it is possible the hotel desk clerk was in fact an undercover millionaire who just liked working nights. However, contrary to what some politics pundits might suggest, the exception--if it exists--does not disprove the rule. Most people do not prefer to spend their nights working and away from their families. What came to me during the hour-long ride to the airport is the importance of human rights: the right to a fair wage, decent working conditions, health care, and more.  Most of us working in human rights understandably focus our energy on individuals or communities confronting urgent and often severe violations of human rights. But being on the road before 5:00 am is a reminder that human rights remains relevant to all individuals, in all walks of life. 

 

 

UN Secretary General Calls for Death Penalty Abolition

"The death penalty has no place in the 21st century" said UN Secretary Guterres as part of World Day Against the Death Penalty.  The event took place at the United Nations and Mr. Guterres was joined by the Assistant UN Secretary for Human Rights,   Andrew Gilmour.  According to UN News Center,  “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” noted Mr. Guterres, underscoring that lack of transparency showed a lack of respect for the human rights of those sentenced to death and to their families, as well as damaging administration of justice more generally."

The News Center goes on to note that "The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), now ratified by 85 States around the globe, requires its parties to abolish death penalty. It is the only universal international legal instrument that aims to end the practice."

Further coverage may be found at deathpenaltyinfo.com

Human Rights and Cultural Heritage: A New Paradigm

Take note of the upcoming conference on Human Rights and Cultural Heritage at Chicago's Depaul Law School.  Here's the info you need to register and attend:

Join DePaul University College of Law's Center for Art, Museum & Cultural Heritage Law on November 1 and 2, 2017 for our conference Human Rights and Cultural Heritage: A New Paradigm. The conference will begin the evening of Nov. 1 with a screening and panel discussion of the documentary The Destruction of Memory and will continue on Nov. 2 with a full day of exciting panels and lectures.

In the past year, the United Nations Special Rapporteur in the field of Cultural Rights has illustrated clearly the important tie between local communities and cultural heritage, as well as the better known paradigm of a universal interest in the preservation of our shared global heritage. In 2016, the International Criminal Court carried out the first prosecution where the sole charge was the war crime of the intentional destruction of cultural heritage during armed conflict based on the destruction of mosques and mausolea at the World Heritage site of Timbuktu in Mali. These events, as well as recent controversies such as the threat to U.S. indigenous cultural heritage through construction of the Dakota Access Pipeline, indicate that this is a critical juncture in scholarly attention to the bond between human rights and cultural heritage.

The conference will bring together experts from the fields of anthropology and law to examine the connection between a just society and the protection of cultural heritage for the benefit of all. It will feature the following panels and speakers:

• Intangible Cultural Heritage and Human Rights: Morag Kersel, Justin B. Richland, George Nicholas, Catherine Bell
• Environmental Justice and Cultural Rights: Patty Gerstenblith, Rosemary Coombe, Dean Suagee, Dorothy Lippert
• Featured Lecturer Karima E. Bennoune, Special Rapporteur in the field of Cultural Rights, United Nations
• Featured Lecturer Shamila Batohi, Senior Legal Advisor to the Prosecutor, International Criminal Court
• Sovereigns vs. Peoples: Who Has Rights to Cultural Heritage: Lubna S. El-Gendi, Sarah Dávila-Ruhaak, Rebecca Tsosie
• Resolving Cultural Heritage Disputes Through Alternative Dispute Resolution: Giving Peace a Better Chance (Ethics Panel): Thomas R. Kline, Stacey Jessiman de Nanteuil, Alessandro Chechi, Lori Breslauer

US Activists and Advocates Respond to UN Special Rapporteur's Call for Input

The UN Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston, received 35  submissions to date in response to his call for input pending his visit to the United States from December 4 - 15, 2017.   The submissions are posted on the UN website here.  From large and small organizations, from individuals, think tanks and law school clinics, the topics span a wide range of issues:  the right to affordable water and sanitation, the treatment of the elderly, the plight of Puerto Rico after the hurricanes, the right to counsel in civil cases, voting rights and the marginalization of low wage workers.  Specific regions and localities addressed include rural New Mexico, Alabama and California as well as urban centers like Philadelphia and Baltimore. 

The Special Rapporteur has set up a twitter account from which he will be reporting on developments regarding his upcoming US visit, among other things.  While he has not yet identified the specific locations that he will visit in the U.S., he has indicated that he will hold a press conference in Washington, D.C. at the close of his visit on December 15, to summarize his findings at the conclusion of the visit.  Stay tuned!

 

False Equivalency and Bias

Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege.  One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife.  The judge found also that the wife had been inhospitable to her mother-in-law.  The latter finding was justification for the judge to ignore the abuse in fashioning remedies.  Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children.  This is not an isolated case.  In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes.  In these cases, false equivalency is used to protect white male privilege.  The faulty premise can also be used as a sword.

The same discriminatory technique plays out in race cases, as well.  A particularly shocking example happened this week in Virginia.  A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a  "Unite the Right" rally.  Mr. Harris suffered spinal injuries and a head wound requiring ten stitches.  Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony.  In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete.   As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim.  An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences.  Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help. 

My sense is that this is the goal of the white supremacist.  While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury.  Confusion and reluctance to convict will result.

This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.  

 

 

Win the Battle, Lose the War… Oral Argument Analysis of Jesner v. Arab Bank

by Jena Martin, Professor, West Virginia University College of Law, guest contributor

On Wednesday October 11^th, the Supreme Court heard oral arguments in the case of Jesner v. Arab Bank, a case that will decide whether plaintiffs have the right to sue corporations for human rights violations under the Alien Tort Statute (ATS).  The Court heard arguments from the Petitioner, the Respondent and the Solicitor General as a friend of the court.

During the Petitioners’ argument, very little time was actually used discussing the heart of the Court’s purpose for granting cert:  namely whether a corporation, simply by dint of its corporate status, was outside the scope of ATS.  Perhaps this lack of focus was because, as Justice Ginsburg brought up during Petitioner’s time (and which was echoed and expanded upon again by Justice Kagan during her questioning of the Respondent) there seems to be little logical difference between an individual or a corporation for the purposes of tort liability.   As Justice Ginsburg put it succinctly, “what I don’t comprehend is why you would split individual and corporation [in ATS litigation]?” 

Why indeed.

However, if the Solicitor General’s argument is any indication, even if that question gets decided in favor of the Petitioner, the human rights advocates may not be rejoicing. 

Acting as a friend of the court – Assistant Solicitor General Fletcher unequivocally sided with the Petitioners by arguing that there is no distinction between corporations and individuals under the ATS. However, Fletcher also stated that, while “for present purposes, all we’re asking the Court to do … is say there is no categorical bar on corporate liability,” in the future they would “urge the Court to indicate [on remand] that the Second Circuit ought to address [the] very serious extraterritoriality issue.” According to Fletcher, further limiting the reach of the ATS as, he argued, “this court had begun to do in Kiobel” would limit the international friction that he claimed often accompanies these types of cases. 

Of course, the Solicitor General’s suggestion – remanding to the Second Circuit with instructions – would be one way that the Court could further limit the use of the ATS.  However, another way could be to order re-arguments in the case, asking the parties to once again address the issue of extraterritoriality.

Although that would be an unusual step to take, the Court did precisely that the last time the ATS was before it in Kiobel v. Royal Dutch Petroleum (2013). Ironically, the original question before the Court in that case was whether corporations could be sued under the ATS in the same way that individuals can (the precise issue now before it in Jesner).  However, a week after the original arguments in Kiobel, the Court ordered additional arguments on whether the ATS could be used when the violations happened on foreign soil.  As a result of the second round of arguments, the Court subsequently held that so called foreign cubed cases – namely ATS claims that arise on foreign soil and where both the defendant and the plaintiff are foreigners – are outside the ambit of the statute. 

It would seem that the Solicitor General would now have the Court again reopen arguments to further limit the scope of the ATS. Moreover, if the questioning today from the conservative portion of the bench is any indication (Roberts, Alito, and Gorsuch all had questions that either involved: (1) the scope of extraterritoriality; (2) the prospect of foreign entanglement or; (3) the foreign nationality of the defendant)  – the Solicitor General’s office may just get its wish.  If that happens, then the ATS will most likely be made moribund for future victims of human rights abuses – whether the defendant is a corporation or not.

Congratulations to Greg Asbed -- MacArthur awardee for his US human rights work!

By designating him as a MacArthur "genius," the MacArthur Foundation has recognized the visionary US human rights advocacy of Greg Asbed, co-founder of the Coalition of Immokalee Workers and principal architect of the Fair Food Program.  For more information on Greg's work, click here.   Kudos to the MacArthur Foundation for raising up this work and highlighting the importance of human rights activism in the U.S.

Ben and Jerry's Steps Up

Earlier, Prof. JoAnn Kamuf Ward reported on efforts to convince Ben and Jerry's to sign onto a Workers Human Rights Program.

We are happy to report that an agreement was reached with Ben and Jerry's who became the first in the dairy industry to agree to pay a premium to struggling dairy farm owners, and also to ensure that workers are treated with respect.  The Milk with Dignity Agreement is legally binding.  The agreement establishes humane labor conditions and creates enforcement processes that  encourage workers to report violations.

The spokesperson for Migrant Justice said:

 “This is an historic moment for dairy workers.  We have worked tirelessly to get here, and now we move forward towards a new day for the industry.  We appreciate Ben & Jerry’s leadership role and look forward to working together to implement a program that ensures dignified housing and fair working conditions on dairy farms across the region. And though this is the first, it won’t be the last agreement of its kind.”

Papers of Importance - Smith v. Pavan

By Justine Dunlap

“It’s only a piece of paper.” This phrase can used to minimize the value of something. It has been leveled against court orders which can be, it is true, just a piece of paper unless they are enforced. However, it is the piece of paper that grants the right of enforcement, which is very significant indeed.

It would be easy to set forth a list of single pieces of paper that confer important rights. One such piece that would likely make that list is a birth certificate. And it is this particular paper that was the focus of a rather under-the-radar U. S. Supreme Court decision issued on the last day of the 2016-2017 term.

In Smith v. Pavan, the Court, in a Per Curium opinion, reversed the Arkansas Supreme Court in a case that involved whether Arkansas could refuse to list a non-biological same-sex parent on a birth certificate. The state Supreme Court had held that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges did not mandate that the State of Arkansas place both same-sex parents on their child’s birth certificate. Specifically, the Court said that although the Obergefell decision mentioned birth certificates once, the reference was “related only to its observation that states conferred benefits on married couples.”

The U.S. Supreme Court, in reversing, seized on language in Obergefell’s next paragraph which declared that by not being permitted to marry, “same-sex couples have been denied the constellation of benefits that the states have linked to marriage.” Citing the same language that the Arkansas Supreme Court had referenced, then dismissed—the mention of birth certificates as one of the “governmental rights, benefits, and responsibilities” that are conferred on married people-- the U.S. Supreme Court in Pavan wrote that the mention of birth certificates in Obergefell was “no accident” as several of the Obergefell plaintiffs had challenged a state’s refusal to list a same-sex parent on a birth certificate.

The Pavan per curiam opinion explained that its Obergefell case required that now-married same-sex couples could not be denied that “constellation of rights” attendant to marital status, thus refusing to countenance the Arkansas Supreme Court’s narrower view.

This case was issued on the last day of a fairly quotidian term, a term without many cases of import, intentionally planned for fear of a four-four split. Interestingly, by the time of this decision, the Court was again at its full nine-justice strength.

This “opinion of the court” included a dissent authored by Neil Gorsuch, the Court’s newest member. And as Supreme Court watchers began their tradition of assessing the upcoming term in late September and early October, the Pavan case has received a bit more attention for exactly that reason. Since one of the cases identified as a major case of the term, the colloquially named gay wedding cake case, is set to be argued on December 5th, people are looking to this dissent as one way of assessing Justice Gorsuch’s Supreme Court persona.

Regardless of what Pavan says about Justice Gorsuch, is important for what it tells us about what the Court meant in Obergefell. Pieces of paper are important; they confer rights, and obligation, and status.

Human Rights and Trade

by Lauren Carasik

 

 

In anticipation of the United Nations Special Rapporteur on extreme poverty and human rights’ country visit to the U.S. in December, the International Corporate Accountability Roundtable sent a submission addressing the Poverty Impact of Corporate Influenced Trade Policy in the United States. ICAR argues that “[g]iven the relationship between trade, poverty, and the enjoyment of human rights, it is critically important to examine how trade policy is developed in the United States, who is sitting at the negotiating table, and what impacts these policies are having on the realization of human rights”  The submission focused on communities ravaged by trade policies, including the loss of millions of jobs and its deleterious impact on struggling families, many of whom live below the federal poverty line. Those communities are further harmed by depleted local coffers that result in decreased public spending, which in turn impedes access to public infrastructure and welfare systems. Through their focus on the benefits to corporations, ICAR argues, U.S. trade policies ignore the damaging impact on human rights, including the right to an adequate standard of living and the right to health. ICAR recommends several policy shifts aimed at prioritizing the consideration of human rights in trade policy, including increasing transparency and participation by affected communities, the development of mechanisms to conduct human rights impact assessments, the development and implementation of laws and policies that address the prominence of corporate influence in trade policymaking, and undertaking an analysis of and efforts to redress shortcomings in the Trade Adjustment Assistance (TAA) program.

On another front, last month a group of NGOs including ICAR, EarthRights International, Greenpeace, the AFL-CIO and the Institute for Policy Studies wrote to the US the Trade Representative Robert Lighthizer, who is in the process of renegotiating NAFTA. The organizations ask him to safeguard the goals of addressing the Agreement’s harms and that revisions benefit “the economies and populations of the United States and of our trading partners.”  They letter cites the Ambassador’s previous statement that central to that objective is ensuring that “dispute settlement provisions [be] designed to respect our national sovereignty and our democratic processes.”  The organizations “support this negotiating objective and therefore urge the United States to reject and remove the investor-state dispute settlement system (ISDS) under Chapter 11 of NAFTA that empowers multinational corporations to undermine U.S. sovereignty and the United States government’s efforts to enact policies to protect the public interest, human rights and the environment.” In closing, the letter exhorts the Ambassador to honor the “growing international consensus that in order for trade and investment to be fully beneficial to all, international investment agreements must not undermine human rights and environmental protections.”

October 10th - The 15th World Day Against the Death Penalty

The US voted against a UN resolution condemning the use of the death penalty for same sex couples engaging in consensual sex.  Twenty seven nations voted in favor of the resolution, thirteen voted against it with seven abstaining.  The US has taken an inflexible stand, signaling that it will not take any action that might suggest that the death penalty is inappropriate.  There are eight countries that use the death penalty as punishment for same sex relations in the entire country or part of the country: Iran, Saudi Arabia, Sudan, Yemen, Nigeria, Somalia, Syria and Iraq.  The same resolution condemns the use of the death penalty for adultery because of its disparate impact on women.  The resolution was proposed by Belgium, Costa Rica, France, Mexico, Moldova, Mongolia and Switzerland.  

Join others around the world on October 10, taking action to end the death penalty.  For more information, click here.