Tom's Civil Liberties Blog

In 2004, a group of fertility doctors refused to treat a lesbian on the basis that their religious beliefs prohibit them from helping lesbians reproduce.  Yesterday, the California Supreme Court unanimously held that they violated state antidiscrimination laws:

The woman, Guadalupe Benitez, successfully filed suit against the doctors and their medical group in 2004 on the basis that their refusal to treat her violated California's anti-discrimination laws. However an appeal court in San Diego ruled against Benitez, a decision that led to the supreme court ruling.In an unanimous decision the justices ruled that Benitez was entitled to be treated like other patients with the same condition, and that constitutional protections for religious liberty do not excuse unlawful discrimination.

The fact that the San Diego appeals court actually held that religious liberty does excuse unlawful discrimination is a little troubling.  Would a emergency room physician who holds a white supremacist theology, and believes that non-whites do not deserve to live, be entitled to walk off on patients of color at random on the basis that his religious liberty trumps their right to treatment?  If we don't draw the line at medical treatment, where do we draw the line?

Related: History of the Gay Rights Movement

A new Department of Justice report (Juvenile Transfer Laws: An Effective Deterrent to Delinquency?; hat tip to the ACLU Blog of Rights) has documented that laws prosecuting juveniles as adults, stamped in bold print in every right-wing demagogue politician's political playbook, don't actually help anybody. The New York Times' assessment of the report is spot on:

The value of specialized courts for young people is underscored in a new report from the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. After evaluating the available research, it concludes that transferring juveniles for trial and sentencing to an adult criminal court has increased recidivism, especially among violent offenders, and has led many young people to a permanent life of crime.

But even the Times fell for faulty reasoning. As part of its editorial in support of the report's findings, the Gray Lady adds in this nugget:

Young people who commit serious, violent crimes deserve severe punishment. But...

No judge is qualified to decide what criminals deserve, and no punishment is fine-tuned enough to deliver it to them. The purpose of the criminal justice system is to protect the general population from criminals, and to reduce criminal recidivism through a mix of rehabilitation and deterrence. That's the best we mortals can do. A criminal justice system that takes it upon itself to play God will soon find itself in the business of building Hells, and the foolish and shortsighted strategy of throwing the book at juvenile offenders inevitably results from this sort of thinking.

Lawmakers, in other words, need to stop locking criminals away because they deserve to be locked up and focus instead on locking criminals away because we deserve to have them locked up. That's a much more sensible approach to the problem of crime. Americans need to be protected, not avenged.

Related: The Eighth Amendment

The ACLU of Southern California is hosting a new petition asking Governor Arnold Schwarzenegger to sign SB 1322, the Loyalty Oath Reform Bill of 2008, which would eliminate McCarthy-era loyalty oath requirements for state employees.

The oath has blocked an unknown number of Quakers and others averse to taking oaths, particularly oaths that imply commitment to current and future U.S. wars, from careers in public service. As the ACLU of Southern California explains in yesterday's guest blog on DailyKos:

... Cal State Fullerton faculty member, Wendy Gonaver, a Quaker and a Pacifist ... was fired this academic year because of her refusal to sign the oath which also requires swearing to "defend" the U.S. and California constitutions "against all enemies, foreign and domestic." She offered to sign the pledge if she could attach a statement expressing her views but Cal State Fullerton rejected her statement and insisted that she sign the oath if she wanted the job. She was subsequently fired for upholding her religious beliefs. "I wanted it on record that I am a pacifist," said Gonaver, 38. "I was really upset. I didn’t expect to be fired. I was so shocked that I had to do this."

If you live in California, be sure to add your name to the petition asking Governor Schwarzenegger to sign SB 1322 and support freedom of conscience in California.

Related: History of Conscientious Objection in the United States

In the event that Saddam Hussein and 14 of the 19 hijackers who participated in the September 11th attacks rise from their graves, we can take comfort in the fact that they would be detained at the airport according to documents discovered by 60 Minutes and reported on by the ACLU.

Other targets of the government's one-million-strong terror watchlist:

• At least four members of Congress: Senator Ted Kennedy (D-MA) and Reps. John Lewis (D-GA), Loretta Sanchez (D-CA), and Don Young (R-AK).
• Anyone named Gary Smith, Robert Johnson, or John Williams.
• Hundreds of thousands of ostensibly random people, including countless U.S. citizens, who happen to have common Arabic names.

As the list grows--by 20,000 names per day, according to one Department of Justice official--it becomes increasingly useless, impractical, and silly. But one beneficial side effect, from a Bush administration perspective, might be that it creates a de facto program of ethnic profiling by subjecting men with common Arabic names to unusual levels of scrutiny.

Related: Can Ethnic Profiling Be Constitutional?

"Gay Las Vegas."

That's the phrase that some right-wing commentators have begun to use in reference to Massachusetts, now that the state government has made the wise and sensible decision to allow out-of-state couples to marry in the state without establishing residency. (Governor Patrick signed the bill on Thursday, his 52nd birthday, describing it as "a great birthday present.")

The new legislation, which took effect immediately, struck down a 1913 law intended to prevent interracial marriages by out-of-state couples living in states that prohibited same. Consider: The state that was unwilling to function as a "Las Vegas" for interracial couples in 1913 is at least willing to be a "Las Vegas" for same-sex couples in 2008. That's progress.

Of course, if legislators in other states had not pandered to racism in 1913, there would have been no call for Massachusetts to function as a "Las Vegas" then. And if legislators in other states were not pandering to homophobia today, there would be no need for it to function as a "Las Vegas" now. It would be nice if same-sex couples could get married in their home states, instead of having to hunt around for a state that isn't run by people who think or pretend to think that God has commanded them to scrutinize their constituents' love lives.

But since we're not quite there yet, gay-friendly states may as well rake in all that wedding-related tourism revenue. Massachusetts doesn't really need the money--other states, such as my own home state of Mississippi, could really be transformed by the estimated $700 million in additional revenue expected to pour in as a result of all these new marriages had their leaders been smart enough to be the first on the scene. Then again, this isn't the first time the people of Mississippi and like-minded states have allowed bigots to sabotage their economic interests--and if history is any guide, it won't be the last.

Good for Massachusetts. And good for California, if its citizens are intelligent enough to do the right thing in November and reject that ridiculous anti-marriage referendum. Marriage is now a national option for same-sex couples; the only question now is how long conservative states will continue to ignore their constitutional obligation to recognize these out-of-state marriages. Probably for quite some time, I'd wager, since there's no indication that the U.S. Supreme Court is in any hurry to enforce Article IV on this matter--but at least some states, such as New York, aren't waiting.

Related: Four Reasons to Support Same-Sex Marriage

Several hours ago, the Massachusetts House voted 118-35 to strike down a 1913 law banning marriages by out-of-state couples. The Senate has already voted to repeal the law, and the governor has promised to sign it when it reaches his desk (which will probably happen tomorrow).

What this means is that soon, every same-sex couple in the country will be legally able to marry in Massachusetts without establishing residency. This is, in some ways, just as significant as the 2004 Massachusetts ruling that allowed same-sex marriage in the first place--because it makes marriage between same-sex couples a national reality. Even if the rights associated with marriage may or may not be available in the couple's home state, any American same-sex couple that can afford fare to Massachusetts will soon be able to become a legally married couple. And it's about time.

Related: Same-Sex Marriage in Massachusetts

As the Senate debates a press shield law, civil libertarians are understandably concerned about the excessively weak compromise language that seems to be on the table. As ACLU senior lobbyist Terri Schroeder argues:

In recent years, we have seen a troubling increase in the number of journalists who have been threatened with or served time in jail simply for doing their jobs. With historic stories revealing warrantless wiretapping and the CIA’s use of torture, it’s hard to imagine that our government would ever be held accountable for its actions if it weren’t for a free press and its confidential sources.

Unfortunately, as we move closer and closer to getting a shield bill to the Senate floor, the bill is becoming weaker and weaker ... No matter how much Senator [Arlen] Specter and others on both sides of the aisle fight for legitimate protections, some will not be happy until the shield bill is ‘compromised’ into an empty gesture.

Our ability to function as a meaningful democracy depends on our ability to access information that the government may or may not really want us to have. Each major executive branch scandal of the past 40 years, from Watergate to Iran-Contra to Abu Ghraib, became public because journalists made it public. Allow journalists to be prosecuted simply for providing information that those in power would like to keep hidden, and you're creating a system where corruption thrives and free speech dies.

One of the arguments against a meaningful press shield law is that terrorists and rogue nations could potentially use information leaked by journalists as propaganda. The Abu Ghraib photographs, for example, no doubt inspired many to join the insurgency in Iraq--costing the lives of an untold number of American troops. But there are at least four good responses to this line of reasoning:

1. Any information that can be accessed by journalists can also be accessed by spies, so any government that punishes journalists to keep information a secret is only putting a band-aid on a much larger, and potentially much more deadly, national security vulnerability.
2. Do we really want a government whose existence and stability depends on its power to do extremely evil things in secret? What kind of country would we be living in if the government were free to create as many Abu Ghraibs as it wished, with no fear of political consequences?
3. How can citizens vote if they're not given the information they need to make judgments about the values and practices of incumbent administrations?
4. If the government is really leaking sensitive national security information at every turn, why punish journalists for internal government policy failures?

We need a strong and forceful new press shield law that allows journalists to continue to report the news without fear of government harassment, censorship, or imprisonment. Anything less will place our future as a liberal democracy in jeopardy, and our country among the nations of the world that attempt to control the media as a means of retaining power.

Related: A New Sedition Act?

As scapegoats go, George W. Bush sure makes a good one. Nobody in modern history has done more than he has to expand the power of the executive branch.

So I can forgive the members of the House Judiciary Committee for focusing excessively on Bush during yesterday's hearing on executive power. But here's the thing: Bush is leaving office in less than six months. And then what?

Impeaching Bush, at this late date, would be a purely symbolic gesture that would distract from the long-term policy reform that needs to be done to prevent the next president, or the president after that, from becoming another George W. Bush. And while some have argued that impeachment would serve as a deterrent to future presidents who violate executive power, I don't really see how. If the House were to impeach Bush, it would be on party lines and would have as much to do with the Iraq War and the bad economy as it would with executive power. It would do nothing to prevent future abuses of executive power.

A better approach would be to find some constructive way to rein in the power of the presidency by adding teeth to federal regulations that theoretically restrict the power of the executive branch. I think the simplest way to do this would be to expand the mandate of the White House Office of Special Counsel somehow, making it more comparable to the Office of Independent Counsel that Bill Clinton, Kenneth Starr, and the overzealous Republican Congress effectively destroyed in 1999. The notion of an Independent Counsel, the closest thing the executive branch had to a Bureau of Internal Affairs, remains the best hope we have of enforcing legislative restrictions on the executive branch, short of revising the Constitution (which would require supermajorities that we do not presently have) or waiting for the federal judiciary to get its act together (which would take too long, and may not happen at all).

Related: George W. Bush on Civil Liberties

Verbatim, courtesy of Rep. John Conyers (D-MI), committee chair:

The Committee is expected to examine a range of legal and legislative responses to allegations of administration misconduct and their expansion of executive branch power.

Since the beginning of the 110th Congress, the Committee has conducted extensive oversight into allegations of misconduct by the administration, including: (1) improper politicization of the Justice Department and the U.S. Attorneys offices, including potential misuse of authority with regard to election and voting controversies; (2) misuse of executive branch authority and the adoption and implementation of the so-called unitary executive theory, including in the areas of presidential signing statements and regulatory authority; (3) misuse of investigatory and detention authority with regard to U.S. citizens and foreign nationals, including questions regarding the legality of the administration’s surveillance, detention, interrogation, and rendition programs; (4) manipulation of intelligence and misuse of war powers, including possible misrepresentations to Congress related thereto; (5) improper retaliation against administration critics, including disclosing information concerning CIA operative Valerie Plame, and obstruction of justice related thereto; and (6) misuse of authority in denying Congress and the American people the ability to oversee and scrutinize conduct within the administration, including through the use of various asserted privileges and immunities.

This could be a good idea if it eventually results in long-term policy reform. But as the ACLU's Amanda Simon points out, restricting the power of the executive branch will not be easy:

No matter what you think of either presidential candidate it’s difficult to put the proverbial genie of wider executive power back in the bottle and both candidates will have a hard time letting go of the constitutional breathing room George W. Bush and his administration have pilfered over the last seven years.

Related: The Imperial Presidency

My colleague Linda Lowen calls attention to a bizarre new regulation that the Bush administration is currently considering, which would require any medical facility receiving federal funding to enact a policy allowing employees to opt out of performing abortions. Okay, that makes sense. Except that its definition of abortion is, well, a little broader than usual:

The proposal defines abortion as follows: "any of the various procedures — including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action — that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation."

This would have the practical effect of reducing access to birth control pills, emergency contraception, and IUDs. And, as if to provide proof that no actual gynecologists were consulted in the drafting of this policy, it would also classify natural family planning as a form of abortion since it often relies on uterine non-habitability rather than non-fertilization. Yes, you heard right: The Bush administration's proposed definition of abortion is so broad that it even includes the Roman Catholic Church's preferred method of birth control (see section 2370).

It also opens the door for health care practitioners to refuse to assist female patients who are receiving unrelated treatment that may have the side effect of reducing uterine hospitality. The Atkins diet, for example, has been shown to have this effect in mice. Does this mean that dietitians may refuse to see Atkins patients on the basis that the Atkins diet is, by the Bush administration's unusual definition, a form of abortion? In a word, yes.

When asked about the leaked regulation language, a spokesperson for the Department of Health and Human Services replied: "We don’t normally comment on whether we are considering changes in regulations." Under the circumstances, it's easy to see why.

Related: Reproductive Rights 101