Tuesday, April 30, 2019

Kansas Court Protects Reproductive Rights

Thank you Kansas!  A state with a history of passing some of the most restrictive anti-abortion laws in the country has revealed itself to be a defender of a woman's right to choose.  The Kansas Supreme Court upheld women's reproductive rights with only one dissenter and declared that any legal issue involving personal autonomy is determined under  the highest standard of strict scrutiny.   The court gave hope to pro-choice advocates early in the opinion stating:  "Kansas Courts have the authority to interpret Kansas constitutional provisions independently of the manner in which federal courts interpret similar or  corresponding provisions of the United States Constitution. This can result in the Kansas Constitution protecting the rights of Kansans more robustly than would the United States Constitution." 

The court based its decision soley on the provisions of the Kansas constitution, setting a roadmap for possible future strategies for challenges to state anit-abortion laws. 

"Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy."

 

 

April 30, 2019 in Margaret Drew, Reproductive Rights | Permalink | Comments (0)

Monday, April 29, 2019

US To Withdraw From Arms Trade Treaty

At the NRA Annual Meeting in Indianapolis, President Trump announced his intention to withdraw the US from the  Arms Trade Treaty signed by President Obama in 2013.  The treaty, while signed by the president, was not ratified by Congress.  The treaty set controls on the 70 billion dollar international arms trade with a goal of keeping arms out of the hands of human rights abusers.  The announcement was essentially a kickoff to Trump's re-election campaign fundraising.  The NRA contributed over 30 million dollars to Trump's first campaign.  The withdrawal from the treaty was unnecessary, of course, because it imposed no US domestic obligations or laws and explicitly said so.   

As reported by Al Jazeera, "At the same time, public sentiment has shifted. A March AP-NORC poll found that 67 percent of Americans overall think gun laws should be made stricter - up from 61 percent in October 2017. And a June 2018 Gallup poll found overall favourable opinions of the NRA down slightly from October 2015, from 58 percent to 53 percent. Unfavourable views have grown from 35 percent to 42 percent. "

While Mr. Trump did ban bump stocks, he has refused to support eliminating the semi-automatic weapons that have been used in mass shootings.  Mr. Trump's announcement to the NRA came shortly before one person was killed and several wounded as Passover worshippers were shot in a San Diego synagogue

With the treaty revocation, Mr. Trump continues to roll back all he is able of the Obama Administration's initiatives.

 

 

April 29, 2019 in Margaret Drew | Permalink | Comments (0)

Sunday, April 28, 2019

Hugs Are Are A Good Thing - Except When They Are Not

By Prof. Justine Dunlap

Image1Joe Biden—boy is this guy generating a lot of press.  Much of which is a natural pro and con discussion of his past acts, be they legislative, political, or personal.  There’s so much to catalog about Uncle Joe, it’s hard to know where to start. But his seemingly ceaseless need to touch people warrants a little more ink as his embracing nature can serve as an object lesson in gradation for us all.

The current #MeToo world teaches that women have been subject to all levels of objectionable behavior. For centuries, they were deprived of the legal or moral support to take action, to get redress, to speak out, or to have the costs of speaking out not exceed the costs of staying silent. In many quarters, that deprivation remains palpable, the benefits of #MeToo notwithstanding. However, the attention now afforded unwanted behavior makes it more likely that behavior that treads on the criminal side will have consequences.

The #MeToo movement, it is also said, has blurred the line between offensive and non-offensive behavior. In other words: men just don’t know how to act anymore or no longer know the rules of engagement.

The first response to that concern is this: It is not really that hard to distinguish appropriate from inappropriate behavior about 90% of the time. So, except around the edges, it’s easy to stay within the lines. One lesson then: avoid the edges if you are not sure.

The second response is: objectionable behavior comes in different forms but, like the difference between a personal foul and a flagrant foul in basketball, some actions are simply and obviously worse than others. Which brings us back to Joe Biden. And, perhaps, back to new rules of engagement.

We can hope that we have all gained valuable perspective from the increased focus on how one’s behavior makes another person feel.  Joe Biden now has this perspective.  He now gets it, he says. His touchiness, his need and desire to establish a human connection, has endeared him to some and may be a source of some of his popularity. But his touchiness is not universally popular or always individually appreciated. His actions have made some recipients uncomfortable and, with some of the photos floating around the web, even some non-recipients may have had a hindsight-is-20-20 cringe.

Two things seem clear from Biden’s former embrace of the embrace. First, it is not a respecter of gender. Just search for the pictures of his up-close and personal clutching of his boss, the famously reserved President Obama. And, second, this universality suggests that it is not based in predation.

So it’s good to hope that Biden “gets it” and will henceforth more carefully think about whether his need for a human connection is matched by the prospective huggee. So too should those touchers among us try to get it. A clasp on the shoulder or a side hug are not always welcome.  But we all know—natural touchers or not—that such a clasp or a hug is not equivalent to the predatory actions that led to #MeToo.

 

April 28, 2019 in Justine Dunlap | Permalink | Comments (1)

Thursday, April 25, 2019

The US Objects to UN Resolution to End Sexual Violence In War

The  United Nations sought to pass a resolution to end sexual violence in war.  One would assume that opposition to the resolution would scarce.  But the United States managed to do so.  Celebrities urged the US to join in the resolution with George Clooney asking the US to stand on "the right side of history" and Angelina Jolie co-authored an op-ed urging that perpetrators of sexual violence be held accountable.   

And why would the US threaten to veto this Security Council resolution?  Because of its references to sexual health. As the Washington Post reported, "The move to water down Tuesday’s resolution followed weeks of U.S. objections to remove all references to reproductive and sexual health, which the U.S. delegation feared would be understood as support for abortions."  The US opposed the reference to the women and girls raped in conflict having a right to access sexual and reproductive health services.  

Empowered by US opposition, China and Russia then opposed the resolution's provision expanding NGOs ability to track perpetrators of sexual violence in conflict.  

The resolution ultimately passed with references to sexual health rights removed.  Russia and China abstained. 

Perhaps it is time to re-visit veto power on the Security Council.  

If there is any good news in this saga, it is that other countries acknowledged the US administration's consistent efforts to undermine and eliminate women's rights.  

 

 

 

April 25, 2019 in Margaret Drew | Permalink | Comments (0)

Wednesday, April 24, 2019

Harvard launches free online course on Children’s Human Rights

Harvard University is launching a free open online course on "Child Protection: Children’s Rights in Theory and Practice."

The course, which has a duration of 14 weeks and requires a commitment of 4 to 6 hours per week, is taught in English.  The course instructor is Professor Jacqueline Bhabha, Harvard’s Research Director of the Center for Health and Human Rights.

For more information and to register, click here.

April 24, 2019 | Permalink | Comments (1)

Tuesday, April 23, 2019

Heard at SCOTUS -- International and Comparative Law!

According to press accounts, today's oral argument in Dep't of Commerce vs. New York -- the challenge to a census question on citizenship -- suggested that the Court's majority are willing to uphold the inclusion of the question.  We'll have to wait to see whether those predictions are correct.

Meanwhile, it was curious, and perhaps a harbinger of things to come, that Justice Kavanaugh raised an issue of international law and practice during the oral argument.  Here's the relevant excerpt from the transcript:

JUSTICE KAVANAUGH: [T]he United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question. And the United States has asked a citizenship question, as you know, in one form or another since 1820, excluding 1840. And, again, long form at times, in more recent times, and then on the ACS since 2005. The question is, does that international practice, that U.N. recommendation, that historical practice in the United States, affect how we should look at the inclusion of a citizenship question in this case?

UNDERWOOD: The same guidance from the U.N. also says to be careful to test questions to make sure they don't interfere with the enumeration. It says you need to make a judgment in context. It may be that those countries either haven't examined or don't have the problem that has been identified -- the problem of depressing the enumeration that the United States has. It's certainly something to look at, but –

JUSTICE KAVANAUGH: But you agree it's very -- it's a very common question internationally?

UNDERWOOD: Well, it is certainly useful information for a country to have. And I'm not suggesting at all that that information shouldn't be collected. The question is whether it should be collected on the very instrument that is -- whose principal function is to count the population, when we have such strong evidence that it will depress that count, make it less accurate . . .

--

In the past, it has been the more liberal justices who have paid special attention to international and comparative law and practice -- to provide support for affirmative action, cutbacks to the death penalty, marriage equality, and so on.  But Justice Kavanaugh, clearly a conservative member of the Court, came to the Court having taught international law in the past.  As New York Solicitor General Underwood's adept answer to Justice Kavanaugh's question indicates, comparative law is not always straightforward.  Going forward, it appears that litigants will have to be prepared for international and comparative questions from both wings of the Court -- a welcome development, since there is much that the U.S. can learn from international bodies including, in the census case, the importance of testing the impacts of certain census questions before introducing them.  

 

April 23, 2019 | Permalink | Comments (0)

Monday, April 22, 2019

U.S. National Security and International Law: The Write Stuff

The International Committee of the Red Cross (ICRC) Delegation for the United States and Canada and the faculties at the Loyola Law School of Los Angeles, Stanford Law School, and Cardozo Law School announces the 4th Annual Workshop on “Revisiting the Role of International Law in National Security” to be held on 12 July 2019 at the Cardozo Law School in New York City.

The co-organizers hope to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict. The workshop will focus on scholarship and ideas that seek to bridge partisan political divides while addressing both the law and national interests.

The workshop will provide an opportunity for authors to have their works in progress critiqued by established experts in the field of IHL, and will provide a networking opportunity for participants.

The organizers ask only for papers that will not yet have been accepted for publication at the time of the workshop (i.e. July 12th). The deadline for abstracts is 1 May 2019.

Please email your abstracts with your name and current affiliation to Tracey Begley at trbegley@icrc.org.

 

April 22, 2019 | Permalink | Comments (0)

Sunday, April 21, 2019

The Easter Attacks

Over 200 people were killed in Sri Lanka on Easter Sunday and twice that number were injured. Churches were the primary targets but hotels and restaurants were also targeted.    An extremist Islamic group is alleged to have organized the attacks.  As hundreds of thousands of people worldwide celebrated Easter and Passover, religion once again was the disguise for murder.  Worshippers are easy targets.  This is a phenomenon with which the US is well-acquainted.  

Last October, 11 Jewish worshippers were killed in a Pittsburgh synagogue as they observed the Sabbath. 2018  saw yet another increase in hate crimes, particularly in anti-Semitic acts.  Among the many charges filed against that shooter was obstruction with the free exercise of religious beliefs.  In 2012, six people were killed by a white supremacist at a Sikh temple in Wisconsin.  Attacks on Christian worshippers in Virginia and Tennesee were similarly horrifying.

The solution is elusive because the US fails to recognize a right to safety.

 The US Congress is unwilling to limit access to semi-automatics and other weapons used in mass killing.  Yet such action would prevent most of the large scale killing of worshippers and others.  All of this raises the question of state responsibility to protect the safe exercise of religious practices. Despite the recent focus by the federal courts on religious freedom, the ability to worship in a safe environment has eroded.  What we observe is a right which the court defends when the issue is preserving mainstream (usually Christian) beliefs while refusing to assume any responsibility to ensure the enforcement of those rights.  US courts reject any notion that the state has a responsibility to ensure safety even though safety is what makes the exercise of our fundamental rights possible.  A la Castle Rock v. Gonzales, the right to safety is not acknowledged in our governmental systems.

 

 

 

April 21, 2019 in Margaret Drew | Permalink | Comments (0)

Thursday, April 18, 2019

Bi-Partisan Human Rights Resolution Vetoed

On one thing Congress agreed.  The United States should withdraw its involvement in the war in Yemen. While promoted as a civil war, the escalation and breadth of devastation resulted directly from Saudi bombing.  The "war" is nothing more than the Saudi Prince's desire to consolidate his power at a time when he was the equivalent of the Defense Minister.  He did not anticipate the resistance he encountered.  This Saudi driven war has had a devastating impact on the country.  Photographs of starving children are horrific.  Educational systems have been closed leaving over 1.7 million children without any education.  Between 13 and 20 million Yemeni civilians face starvation.  Over 17,000 Yemeni people have been killed or injured.  This war is no longer a civil war but a war of Saudi domination. Yemen is all but destroyed.

In a rare bipartisan move, Congress passed a resolution calling for an end to any US involvement in the war.  US involvement includes arms sales to the Saudis. This weak the President, a strong supporter of the Saudi's, vetoed the resolution calling it an attack on his presidential powers. 

 

 

 

April 18, 2019 in Margaret Drew | Permalink | Comments (0)

Wednesday, April 17, 2019

The Administration Gives FGM a Pass

Six months ago, a federal judge sitting in Detroit struck down the federal statute making female genital mutilation a crime.  According to the judge, the statute exceeded Congressional legislative authority. 
 
The case giving rise to this opinion was initiated by the federal government.  If usual procedure had been followed, the federal government would have appealed the case to defend the constitutionality of the statute. 
 
But the usual rules apparently no longer apply.
 
Last week, rather than defending the FGM statute, the U.S. government decided to fold.  Instead of pursuing an appeal to overturn the ruling, the U.S. Solicitor General penned a letter to Congress explaining that it would not defend the statute and calling on Congress to enact a revised version that would better withstand constitutional scrutiny.
 
One has to wonder what research led the U.S. government to this conclusion.  Far from being indefensible, an amicus brief filed in the case by Equality NOW spelled out a strong argument in support of the statute's constitutionality.  
 
Human rights and women's rights groups are quite naturally concerned about the message that the U.S. Government's capitulation sends.  Equality Now’s blog post regarding the DOJ decision can be found here.   Hilary Clinton also tweeted her reaction to the Government's decision:
 
"There is a federal law banning FGM. It is the Department of Justice’s responsibility to defend it. They’re choosing instead to abandon the fight for the health and human rights of women and girls around the world.  If you agree that’s outrageous, let them know: 202-353-1555."

April 17, 2019 | Permalink | Comments (0)

Tuesday, April 16, 2019

Remembering Richard Zorza

Image1Richard Zorza passed away on April 13th.  For those of you who did not have the pleasure of knowing him, Richard was an amazing and brilliant thinker and social justice leader whose career was formed around access to justice.   A Harvard Law School graduate, Richard, and Joan Zorza each engaged in public interest legal work throughout their careers.  Joan became a respected domestic violence researcher and practitioner.  Richard spent his early career as a public defender and then began a journey to introduce courts and others to how technology could be used to assist the self-represented and how courts can better manage cases involving the self-represented.  One of Richard's most significant contributions was his writing and training on judicial neutrality.  Richard explained that judicial neutrality was not achieved by the court's failure to inquire of pro se litigants,  Rather, Richard theorized, judicial neutrality is best achieved when judicial inquiry is employed to determine the facts of a matter so that the court may make an informed decision.  "  As Richard alerted the judicial system " The appearance of judicial neutrality has caused us improperly to equate judicial engagement with judicial non-neutrality, and therefore to resist the forms of judicial engagement that are in fact required to guarantee true neutrality."  Richard's contribution to the ethics of "judicial neutrality" and the proper way to achieve neutrality were groundbreaking and continue to influence judicial thought on cases with the self-represented.  His article The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications was published in 2004.

Richard's most recent contribution to self-represented literature is Five New Broad Ideas to Cut Through the Access to Justice-Commercialization-Deregulation Conundrum published in 2016.  

The Legal Services Corporation recently honored Richard with a resolution  recognizing his contributions to US legal development.

"Richard has devoted his professional life to improving access to justice in America, particularly for those who cannot afford to pay for counsel. He has worked as a public defender, a legal services attorney and a justice technology designer. Richard was the founder of the Self Represented Litigation Network and served as the coordinator of the Network at its inception and later on its executive committee. The Network has played an indispensable role in bringing together courts, bar associations and access to justice organizations in support of innovation in services for the self-represented. The National Conference of Chief Justices and National Conference of State Court Administrators have described Richard “as the foremost ambassador and crusader for the cause of self-represented litigants in the United States” and as a leader whose “service has been marked by exceptional accomplishments which have benefited innumerable litigants and courts throughout the nation.”

April 16, 2019 in Advocacy, justice systems, Margaret Drew | Permalink | Comments (0)

Monday, April 15, 2019

Pete Buttigieg: Wastewater Management is "Freedom"

If all goes as planned, by the time this blog is published, Pete Buttigieg will have formally declared his candidacy for President.

As someone steeped in local governance as the Mayor of South Bend, Indiana, Buttigieg brings to the race a special awareness of issues that often fly under the radar during national elections.  Water and wastewater are great examples.

Water access, affordability, and wastewater treatment are all the province of local government.  National politicians often overlook these concerns even as they address important universal rights such as health care.  Yet Buttigieg identifies water as a critical component of Americans' freedom.

For example, in an August 2018 Rolling Stone interview, Buttigieg said:  "I think about wastewater management as freedom. If a resident of our city doesn’t have to give it a second thought, she’s freer."

He repeated this idea more recently at an appearance at Northeastern University in Boston, adding drinking water into the mix.

Time will tell whether Buttigieg's unlikely campaign continues to gather momentum.  But if nothing else, Buttigieg's recognition of the importance of water in everyday lives -- and the jeopardy that individuals face because of government's neglect of these concerns (think Detroit, Baltimore, Flint, Lowndes Co. Georgia) -- will make an important and unique contribution to the election debates over the next 18 months.

 

April 15, 2019 | Permalink | Comments (0)

Sunday, April 14, 2019

The Administration's Campaign to Undermine Human Rights Continues

Politico reports that the Trump Administration has declined to renominate human rights leader Gay McDougall as a member of the CERD Committee, which monitors state party compliance with the UN Convention on the Elimination of All Forms of Discrimination (CERD).  Rather than renominate McDougall, the Administration nominated no one to the Committee.  While Committee members serve as experts rather than  national representatives, the Administration's move ensures that there will be no American voice on the Committee as it considers measures to address racial discrimination worldwide.

McDougall, an internationally renowned human rights advocate, was a particularly effective member of CERD.  She served as the Committee's vice-chair.  She brought to the Committee her extensive experience investigating human rights abuses as a UN expert.  McDougall's credentials include an academic affiliation with Fordham Law School, honorary degrees from Georgetown and CUNY Law Schools, and a MacArthur "genius" award recognizing her work against South African apartheid, among other campaigns.

It is well-known that the current Administration has a practice of reneging on its international commitments.  The U.S. resigned from the UN Human Rights Council, for example, and has failed to hold up its treaty obligations by filing monitoring reports with the UN.  The list goes on, with withdrawal from the Paris Climate Accord, and failure to support the Inter-American  Commission on Human Rights.

All of these actions remove the U.S. from human rights dialogues that might, over time, expand the human rights of U.S. residents.  But beyond that, removing U.S. voices from these formal dialogues also gives other nations cover for their human rights abuses.  McDougall, for example, was an outspoken advocate for addressing the human rights situation of the Uighurs in China.  While she will no doubt continue to speak out, the Trump Administration's move sends a message that such human rights critiques take a back seat to economic considerations -- including personal economic gain for the President and his family, whose business ties to China remain extensive. 

The U.S. has long taken an approach of human rights "exceptionalism," based on the idea that our domestic standards were "exceptional," essentially exempting us from international human rights scrutiny and dialogue.  As a human rights leader, this idea went, we could stand aside and critique others for their human rights records. 

This latest development at the CERD Committee, however, demonstrates that human rights exceptionalism has taken on a new meaning in the U.S.  Now, human rights itself is "excepted" from America's governance equation, and our current government will do what it can to deny a platform to those who speak out effectively on human rights issues, wherever those abuses occur.

 

 

 

April 14, 2019 | Permalink | Comments (0)

Thursday, April 11, 2019

Funding for Social Justice Activists

The A.J. Muste Memorial Institute Social Justice Fund makes grants for grassroots activist projects in the US and around the world, giving priority to those with small budgets and little access to more mainstream funding sources. The Fund is especially interested in funding efforts to:

  • end the violence of borders and the criminalization of immigrants
  • abolish the death penalty, shut down the prison industrial complex, redefine criminal justice
  • confront institutionalized repression against racial, ethnic, gender-based, and LGBTQ communities
  • support progressive workers movements and the eradication of poverty
  • dismantle the war machine, end state sponsored terrorism, expose the dangers of nuclear power

One of this year's grantees is the Fang Collective, a grassroots group working in the Northeast U.S. to, among other things, shut down ICE and local cooperation with ICE.  

The application deadline for the Social Justice Fund's next round of grants is July 8, 2019.  More information is available here.

April 11, 2019 | Permalink | Comments (0)

Wednesday, April 10, 2019

US Bans Prosecutor Seeking Information on US War Crimes

International Criminal Court prosecutor Fatou Bensouda is banned from the United States.  Secretary of State Pompeo had threatened last month to revoke the visa of anyone investigating the United States.  Prosecutor Bensouda was seeking information about possible war crimes committed by US soldiers in Afghanistan. 

"Washington's attempts to intimidate the ICC by canceling the ICC prosecutor's visa over a possible Afghanistan investigation is the Trump Administration's latest shameful attack on the rule of law" according to Human Rights Watch's international justice director.

The Prosecutor's office said that she will continue complying with her statutory duty and to follow her mandate under the Rome Statute to conduct investigations without "fear or favor."

The visa revocation will not impact the Prosecutor's ability to attend meetings at the United Nation.

 

April 10, 2019 in Margaret Drew | Permalink | Comments (0)

Tuesday, April 9, 2019

New Work on Transformational Justice Within the Energy System

Professor Shalanda Baker of Northeastern Law School has just published a thought-provoking article at 54 Harvard Civ. Rights-Civ. Lib. L. Rev. 1 (2019), titled  Anti-Resilience: A Roadmap for Transformational Justice Within the Energy System.  

Here's the abstract:

Climate change mitigation and adaptation require a transition of the energy system from one that relies on fossil fuels and is vulnerable to major climate events to one that is dependent on renewable energy resources and able to withstand climate extremes. Resilience has emerged as a conceptual frame to drive both climate and energy policy in this transitional moment. For example, in the wake of major storms such as Hurricanes Harvey and Maria, policymakers have frequently called for greater resilience of the energy system and resilience of vulnerable communities impacted by the storms.

This Article focuses on resilience at the system level. It argues that, in many cases, resilience of the energy system may actually reify structural inequality and exacerbate vulnerability. A hardening of existing energy infrastructure may also operate to harden existing social, economic, and environmental injustices that disproportionately burden the poor and people of color. Such situations call for new framings beyond resilience and transition toward liberation and transformation. This Article argues that, to facilitate the liberation of low-income communities and communities of color from the disproportionate impacts they face under the current energy system—and to foster a just transformation of the energy system—activists, policy-makers, and scholars engaged in the work of climate and energy justice must adopt a framework of anti-resilience: An antiracist and anti-oppression policy approach focused on the greater social and economic inclusion of people of color and low-income communities in the renewable energy transition.

April 9, 2019 | Permalink | Comments (0)

Monday, April 8, 2019

Status Anxiety At The Supreme Court: Reconciling Dunn v. Ray & Masterpiece Cakeshop

By Jeremiah Ho  Association Professor, UMass Law School

It’s probably unsurprising to say that a severe case of status quo anxiety has influenced the acrimonious states of our recent politics.  The Senate majority’s latest episode of “going nuclear” (i.e. using a simple-majority vote) to rewrite the rules for confirming presidential judicial nominees seems like a move partly motivated by an urgency to clear the backlog of Trump nominees before a period of political powershifting arrives.  

Last year at this time, a study put forth by the National Academy of Sciences suggested that the dominant demographic that supported Trump in the last presidential election cycle (white, male and Christian) did not act necessarily out of a sentiment of feeling “left behind,” but rather by the narrative of fearing what may come.  Here is a NY Times article from last year that succinctly summarizes the study.  If the idea of fear of the future holds true, then it not only helps us understand what happened in 2016, but also, for the time being, our current state of politics—and, derivatively, of law.

I broach this idea of status quo anxiety because I’ve seen it in two Supreme Court decisions involving religion rendered in the past year.  Such anxiety helps explain for me what might be the animating principle for the Court in controversial decisions that may bring up the fear of progress—or putting it in relative terms of the status quo—the fear of losing status as a result of socio-political progress.

First, in reverse chronological order, is Dunn v. Ray, a case from this past February where the Court vacated the stay of execution entered originally by the Eleventh Circuit.  In Dunn v. Ray, Domineque Ray, a black Muslim, who had been placed on death row in Alabama, requested to have an imam present at his execution.  The Holman Correctional Facility in Alabama, where Ray was to be executed, had regularly permitted Christian chaplains for prior executions but refused Ray’s request for an imam.  Ray appealed and sought a stay of execution.  The Eleventh Circuit granted the stay because it held that the prison facility likely violated the First Amendment Establishment Clause and would proceed to consider the merits of Ray’s case.  However, on further appeal by the Alabama Department of Corrections to the Supreme Court, the Court in Justice Thomas’ written order, vacated the stay of execution because it determined that Ray had waited too long to seek his request for an imam.  The result, as many commentators have noted, is a disparate result between different religions—imparting what Justice Elena Kagan wrote in her dissent, joined by Justices Ginsburg, Breyer and Sotomayor, was treatment that prioritizes a majority religion over a minority religion.  In her words, the Court’s decision “goes against the Establishment Clause’s core principle of denominational neutrality.” 

Some observers immediately noted a speciousness in the Court’s reliance on procedure to lift the execution stay.  The reliance on procedure here seemed heavy-handed, especially in light of the constitutional violations that underscored this case.  Dunn v. Ray is an unsatisfactory case because Ray’s religious merits were ignored—and yet, this is the same court that has recently fortified religious practices, most notably in cases such as Burwell v. Hobby Lobby or Town of Greece v. Galloway.  Very shortly in this term, we will see the Court’s decision in another religious liberty case, American Legion v. American Humanist Association, involving a cross as a war memorial.  So what’s the difference between Dunn v. Ray and the others?  Well, the difference might just be as terse as the majority’s decision in Dunn v. Ray:  we protect religion so long as that religion does not seem to displace or threaten the status quo. 

For further guidance, I refer to Derrick Bell’s theory about the status quo to explain why this underlying motive might be so.  As a corollary to Bell’s well-regarded interest convergency theory, he espoused that even where an effective remedy exists for a marginalized group, that remedy will be abrogated at the point that those in power fear the remedial remedy is threatening the superior societal identity of the status quo.  In the context of political marginalization of African-Americans, Bell called this “racial sacrifice.”  But I also view his theory’s instrumentality applicable to other marginalized groups.  In Dunn v. Ray, the subordination of Ray’s religious liberties could be sacrificial in Bell’s terms as well. 

The Judeo-Christian backgrounds of the majority Justices in Dunn v. Ray are uncontroverted, as well as their conservative dispositions.  In addition, the Judeo-Christian identity is well within the status quo of the American mainstream society and has influenced action on headline-grabbing controversial social issues such as women’s health and sexuality all the way to more subtle conventions such as the national holiday calendar. 

By contrast, there is no doubt that the Muslim faith has engendered much disregard and misunderstanding, especially since September 11th and the war on terror.  Some of the negative responses have become racialized and ensconced within the rhetoric against those of Middle-Eastern descent.  In addition, the politics of race—especially the relations between white and African-American groups—have not fared well in recent years.  All of these combined tensions could have resonated and then fallen upon the shoulders of Ray in his request to the prison for an imam.  Ray was, by all accounts, a black Muslim who had been convicted of a 1995 homicide of a Selma, Alabama girl, Tiffany Harville.  His request for an imam, rather than a Christian chaplain could have triggered a discriminatory response from Alabama prison officials that was independently echoed by the Court’s majority because it would not have led to affirming the freedom to engage in Christian practice, but rather a minority religion.

Status quo bias may not be coming from the Supreme Court bench in the expressed case sentiments of the Justices.  It might, however, explain the use of procedure to summarily dispose of Ray’s case, even when Ray had some constitutional remedial measures, as the Eleventh Circuit had recognized.  Ray might have been substantively entitled to his religious practices, but legal procedures were strictly enforced against him to effectuate that practice.  Ultimately, it results in a double-standard brought to us through plausible deniability that Justice Thomas espoused that Ray’s imam request simply could not be obliged because the timing of the request did not adhere to procedure.  As Justice Kagan revealed in her dissent, it was quite possible the context of Ray’s request had certain injustices that would have made a prompt request impossible. 

Herein lies the speciousness.  The substantive case was strong on Ray’s side but the Court’s procedural justification to deny his request was weak.  The decision to lift the stay prioritizes the Christian faith over other faiths in Ray’s case, despite our constitutional standards of religious neutrality.  Could the resort to procedure be just a cover?  After all, is it the old lawyer’s strategy to resort to procedure if the substance of a case’s merits is not going to produce a win.  (See the late John Dingell’s famous quote: “If you let me write the procedure, and I let you write the substance, I’ll screw you every time.”).  Constitutionally, Ray might have been entitled to having an imam at his execution just as much as another inmate would have been entitled to a chaplain in similar circumstances, but because the Muslim faith is being invoked here, it isn’t treated as urgently as the Christian faith might be.  The Court, under the guise of procedure and plausible deniability, summarily defeats Ray’s claim.  Was the Court’s majority threatened by the idea that giving parity to the Muslim faith in Ray’s instance seemed somehow threatening to the religious liberties given to Christian practices?  Under Bell’s thesis, could we deem this a moment of Muslim and racial sacrifice?

Another recent Supreme Court case that shares this same mechanism is Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In that case, a same-sex couple sought a claim of sexual orientation discrimination under the Colorado Anti-Discrimination Act (CADA) after they had attempted to order for a custom-made cake to celebrate their then out-of-state marriage but was refused by a Christian baker.  By all accounts, under CADA, the couple had strong evidence of sexual orientation discrimination and the baker did not fall within any religious exemptions.  The state-level determinations all found that the same-sex couple had been discriminated against under CADA.  But in 2018, even after Obergefell, the Court reversed the couple’s sexual orientation discrimination claim, not on the substantive merits but through procedure—observing that the lower state proceedings had disparaged the baker’s Christian faith during its review and thus violated religious neutrality.  Again, procedure was used rigidly to vitiate the strong substance of the discrimination claim.  Justice Kennedy’s use of procedure here—the violation of religious neutrality, was likewise specious and thin.  The concurring and dissenting Justices in Masterpiece debated the existence or non-existence of religious neutrality, which seemed to place some doubt on the firmness of Justice Kennedy’s findings.

Could Dunn v. Ray and Masterpiece Cakeshop decisions—both involving religious liberties, minority claimants with strong substantive merits, and the Court’s dismissive use of procedure—have been rendered out of a perceived threat to the status quo’s religious identity?   Do we have a panic on the Court?  Placed with the context of status quo anxiety and Derrick Bell’s sacrifice theory, the two cases allow us to think about the Court’s future renderings for religious freedoms.  If the Court is presiding collectively with status quo anxiety in mind, then minority claimants that seemingly threaten the status quo might have their prayers for relief fall on deaf ears.    

April 8, 2019 in Jeremiah Ho | Permalink | Comments (0)

Sunday, April 7, 2019

Beyond Neglect: Torture and Murder in Alabama Prisons

The New York Times headline read Alabama's Gruesome Prisons: Report Finds Rape and Murder at All Hours.  The investigation into Alabama's male prison system began under the Obama administration with the bulk of the investigation continuing under the present administration.  As the Times article notes, Alabama is not alone in deplorable conditions, but Alabama incarcerates in numbers greater than other jurisdictions and its conditions are "severe" with antiquated prisons housing nearly twice the number of individuals they were built to house.  Photographs of the deplorable conditions may be found here.  Reportedly, the Southern Poverty Law Center received a thumb drive containing over 2,000 photographs of gruesome prison conditions.

Most of Alabama's prisoners are not housed in safe conditions.  Sleeping dorms contain no protections from violence and solitary confinement is used to house the most vulnerable prisoners.  

Alabama Governor Kay Ivey said that her administration will work to address "mutual concerns" and to make certain that the Alabama problem has an "Alabama solution". Interpretation - the concerns were never mutual.  The need for an Alabama solution tells her constituents that once again, Alabama will resist acknowledging the authority and will resent the interference of the federal government.

Example: according to one report, a proposed Alabama solution would have the state build much larger prisons.  This is not exactly a solution that prisoner's lawyers are seeking.  One representative of Southern Poverty Law Center responded:   “You don’t need to build mega prisons, you need to increase the number of correctional officers that are working in your prison. You need to deal with issues of violence and sexual assault. You need to engage in more sentencing reform to further drive down the population, so that you’re not at 160 percent capacity. But, instead, the answer that we got was: build, build, build.”

Administrative self-reflection appears to be the missing link.

April 7, 2019 in Margaret Drew, Prisons | Permalink | Comments (0)

Thursday, April 4, 2019

Pittsburgh Mayor Honored for Role in CEDAW City

Last month, the NGO Committee on the Status of Women/New York awarded the Cities for CEDAW Global Leadership Award to Mayor William Peduto of Pittsburgh, PA. 

The Committee explained that Mayor Peduto "was chosen for this award due to his work to implement sustaining policies which eliminate all forms of discrimination against women at the local level."

The press release for the announcement provides some additional background on the component parts that worked together to achieve this change for Pittsburgh:

"To make the global local in Pittsburgh, NGOs: WILPF/Pittsburgh and the Zonta Club of Pittsburgh, along with women advocate groups New Voices Pittsburgh and the Women’s Law Project, formed the Pittsburgh for CEDAW Coalition. They worked closely with their sponsor, Councilperson Natalia Rudiak, and with the full support of Mayor Peduto, the City Council passed unanimously the CEDAW ordinance in 2016. The Ordinance seeks to improve the lives of all women and girls in Pittsburgh by, for example, reducing and eliminating violence against women and girls, promoting more equitable economic development, increasing quality education opportunities and the delivery of all City services. It recognizes discrimination in these areas also affects the health and well-being of women and girls and seeks ways to improve or complement the work that is already being done by groups such as the Pittsburgh Public Safety Department. The Gender Equity Commission began meeting in 2018 and currently has 14 volunteers who are local feminist leaders. Executive Director Anupama Jain describes their goals of “dismantling gender inequalities in our city” and reiterates the CEDAW motto that, “when women succeed, our communities thrive.'"

April 4, 2019 in CEDAW, Martha F. Davis | Permalink | Comments (0)

Wednesday, April 3, 2019

Endorsing Torture: Bucklew v. Precythe

On Monday, the U.S. Supreme Court issued its ruling in Bucklew v. Precythe --  a 5-4 decision authored by Justice Gorsuch that goes out of its way to endorse methods tantamount to torture as legitimate means to execute a death row inmate.   With a different make-up, the Supreme Court had long looked to evolving standards of decency to guide its 8th Amendment jurisprudence, and had at least acknowledged that continued U.S. embrace of the death penalty left us out of step with peer nations.  The current majority, however, apparently has no use for such transnational comparisons or appeals to human decency, instead gratuitously complaining about the "excessive delays" while prisoners exercise their rights to challenge their executions.

In dissent, Justice Breyer predicts that "it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty."  For the time being, however, the Supreme Court majority seems more concerned with speed than accuracy or fundamental morality.

A day after the Bucklew decision, the Human Rights Committee published its list of issues for the U.S. to address when it prepares its periodic report on U.S. compliance with the International Covenant on Civil and Political Rights.  Questions about the U.S.'s continued use of the death penalty are prominent, and the Committee asks:

"Please provide information on: (a) Death sentences imposed, the number of executions carried out, the grounds for each conviction and sentence, the age of the offenders at the time of committing the crime, and their ethnic origins; (b) Steps taken to eradicate racial bias in death penalty convictions; (c) Execution methods used in carrying out the death penalty and whether such methods were reviewed since the last reporting period; (d) The compatibility of lethal drugs used in executions reported to cause severe physical and mental suffering with the Covenant; (e) Steps taken to prevent wrongful convictions leading to death penalty sentences and provide compensation for those exonerated; and (f) steps taken to implement the judgment of the International Court of Justice on review and reconsideration of death penalties for individuals whose right to consular assistance was violated. Provide information on the number of wrongful death sentence convictions since the prior reporting period and any remedial measures taken. Indicate, also, whether the State party has considered establishing a federal moratorium on executions, with a view to abolishing the death penalty."

Ultimately, the U.S. will present this information to the Human Rights Committee for its review and comment.  The current Supreme Court majority may believe that they can operate in a domestic vacuum, turning back the clock to death squads if need be.  But the rest of the world is judging, too.  The methods of execution approved by the current Court underscore, to people worldwide as well as in the U.S., the utter barbarity of the death penalty.

 

 

April 3, 2019 | Permalink | Comments (1)