This week marks a seminal point in our nation’s history of same-sex marriage. Two cases will be heard before the U.S. Supreme Court that directly affects the rights of LGBT persons to marry. Hollingsworth v. Perry will be heard on Tuesday, March 26th, and United States v. Windsor will be heard on Wednesday, March 27th. Each of these cases could have a drastic impact on marriage equality in the United States.
Hollingsworth v. Perry addresses a very important issue that has yet to be defined by the Supreme Court: Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman. This case was brought as a challenge to California’s Prop. 8. As it now stands, the federal Defense Against Marriage Act (DOMA) permits the federal government and states to ignore legally performed same-sex marriages in the states that allow them. If the Supreme Court finds that LGBT people are discriminated against through the laws of DOMA, it would be unconstitutional for a state to legally define marriage to exclude gay persons.
The decision in Perry will likely only directly affect California law, but it would be a huge victory for equality. We could see a ripple effect throughout the nation of states once again recognizing marriages performed in other states. This would open the door for new legal definitions of marriage to emerge that would grant the right of LGBT couples to have their relationship recognized by the law. A favorable ruling in Perry would pave the way to grant all people the right to marry the person they love.
United States v. Windsor addresses a slightly different issue. On the 27th the Supreme Court will decide whether or not Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. The ACLU brought this case after an 83 year old woman was charged an exorbitant tax bill for her wife’s property when she passed away—they were together for over 40 years! The federal government refused to recognize the women’s legal Canadian marriage and would not apply federal tax benefits for married couples to the property.
This case brings to light a hugely important issue, whether or not the federal government must recognize all legal marriages. For example, my wife and I were legally married in Iowa in October. Our marriage is recognized by the State of Iowa but not the federal government. I cannot receive any federal benefits that may be entitled to my wife, and I still have to file my federal taxes as “single” among many other issues. Gay and lesbian people who serve in the military cannot receive spousal benefits or recognition of their spouses if they are the same gender, even if they are legally married. And the same is true for federal employees who want to add their same-sex spouse to their benefits package. A favorable ruling in Windsor would confer federal benefits on all legally married couples and would prevent the federal government from denying the rights and existence of legally married same-sex couples.
Here in Nevada, the ACLU will participate in Equality Days on Tuesday and Wednesday with groups from around the state who are working for equal treatment of LGBTQ people. Members of our staff and board, and many of our supporters will participate on Tuesday morning in the hearing on SJR 13—to repeal the discriminatory definition of marriage in Nevada’s constitution. During Equality Days we will visit with our elected representatives to discuss legislation that seeks to end discrimination of our LGBTQ citizens and treat them equally under the law.
Today we celebrate the 50th anniversary of one of the most important cases in our country’s history, Gideon v. Wainwright. On March 18, 1963, the United States held that anyone accused of a felony had the right to be represented by a lawyer, even if they couldn't pay for it. This allowed for the creation of our nation’s indigent defense system that consists of public defenders, court appointed attorneys and other pro bono criminal defense representation.
Only 50 years ago, you could have been charged with a crime and if you could not afford to hire an attorney, you would be forced to defend yourself. This lead to many innocent people, who were ignorant of their constitutional rights, being convicted of crimes they were unable to defend against. Today we are all familiar with the common police drama line of “if you cannot afford an attorney, one will be provided for you.” That line exists because of Gideon.
Although the decision in Gideon provided attorneys to indigent clients, it far from perfected the system. Today public defenders are overworked and over extended. It’s not unusual for a lawyer who works as a public defender to have an open case load of 150-200 cases. Often times indigent defendants slip through the system without the benefit of proper representation. Public defenders continue to be the hardest working attorneys in the criminal justice system, but without proper funding and attention, indigent clients continue to be left behind.
AB 49 has been introduced in the Nevada legislature this session and seeks to fund indigent defense in certain counties. Indigent defense is the law, how it is paid for is left to the states. This bill seeks to solve a funding issue, but the funding mechanism is through additional sales taxes. Sales taxes are the most regressive tax possible because everyone pays them regardless of income. In other words, a larger share of lower income household income will be spent on sales taxes. This would mean people who cannot afford an attorney and qualify for the indigent defense right are paying more of their income to realize that right. We oppose this funding mechanism.
Today, we should celebrate the accomplishment of Clarence Earl Gideon when he simply asked the court to honor his right to be represented by an attorney. However, our work is far from over. Indigent defense and the criminal justice system in our country need a drastic overhaul. We need to keep the rights of all citizens in the forefront of our minds and our passion as we work towards creating a more just society. When one citizen who is charged with a crime falls through the cracks of a broken system, it is a failure on us all.
Let us continue the work of Gideon and strive for a more just criminal defense system. The ACLU of Nevada works tirelessly on issues such as these and we continue to hope for further success in the future.
This month marks the 40th anniversary of the landmark Roe v. Wade decision, which was handed down on January 22, 1973. This historic milestone unfortunately comes as states have passed a record number of barriers to a women’s right to choose to have a child or chose to have an abortion. In the past two years alone, over 130 restrictions were passed that make it harder for women to access this and other forms of reproductive services. The attack on a woman’s right to choose does not end there.
Remember the “Personhood” amendments, which sought to declare that a fertilized egg was a person and should be protected in law as a person. These amendments sought to outlaw abortions but could have also banned in-vitro procedures and contraceptives. Think about the increase of mandatory waiting periods across the country (PDF), requiring woman to return after several days to receive medical treatment. Consider the proposed requirements for invasive and costly procedures before a woman can terminate a pregnancy, such as a transvaginal ultrasound. Not to mention the infamous “legitimate rape” claim.
There is thankfully a flip side to this coin: us. While some politicians and groups are increasingly attempting to restrict a woman’s reproductive, people – here in Nevada and across the country – have rejected many such attempts. In 1990, Nevada overwhelmingly passed a referendum protecting access to abortion. We successfully fought off two Personhood initiative petitions, in both 2010 and 2012. So did many other states. Nevada also does not have mandatory counseling or require a waiting period.
Of course, we don’t all feel the same about abortion. But I certainly hope we can agree that this is a deeply personal decision that should be made by a woman, a family, and a health professional instead of politicians.
A recent poll by the Pew Research Center found that even though 47% of Americans say they believe it is morally wrong to have an abortion, 63% of Americans believe that Roe should not be completely overturned. It is heartening to see that many Americans understand the difference between practicing their own religious or moral beliefs and imposing their beliefs on others – a message our politicians unfortunately do not seem to understand.
Roe, at its simplest, is about choice. A woman’s right to choose the reproductive healthcare she wants and to choose the right time to have a child. That choice needs to be protected from government intrusions, religious influences, and social stigmas. We have shown that together we can stop efforts to interfere in the private decisions of a woman and her family, but we must remain vigilant against the mounting set of restrictions that may leave many women without cause for celebration in the future.
Tomorrow, December 15, is the 221st birthday of the Bill of Rights.
My family has a rumor that we’re very distantly related to Patrick Henry. I’m not sure if it can be proven, but I like believing – and so does most of my family – that we’re related to the guy who is credited with saying “give me Liberty or give me Death.” The famous quote was from right before the Revolutionary War, but the sentiment shaped his life’s politics.
Patrick Henry was one of the leaders of the Anti-Federalists, who were worried the Constitution would give too much power to the government and limit the freedom of individuals. The Anti-Federalists fortunately lost the fight against the adoption of the Constitution, creating a unique federal system of government with specific checks and balances that is of, by and for the people.
However, it is because of the Anti-Federalists, with Patrick Henry at the helm, that the Bill of Rights came to be. The Anti-Federalists insisted that the ratification of the Constitution hinge on an agreement that a series of amendments would be passed to protect the rights of the people. The Bill of Rights was adopted on December 15, 1791, four years after the ratification of the Constitution. And so Patrick “give me Liberty” Henry helped secure the individual rights and liberties we enjoy today in America.
It should go without saying, but without the Bill of Rights, there would be no freedom of religion, speech, association, press, or petition, protecting the a person’s right to believe and say whatever they want without government influence or censorship. There would be no right to privacy, protecting a person’s right to be free of unwarranted and unwanted government intrusion into one's private life. There would be no due process of law, protecting a person’s right to be treated fairly by the government.
It is from the Bill of Rights and the civil rights Amendments, the 14th, 15th, and 19th Amendments, that the ACLU finds its mission. The ACLU fights government abuse and vigorously defends individual freedoms. We stand up for these rights when it is unpopular, and sometimes when nobody else will.
So, given my rumored relative, is it any wonder I work for an organization that unwaveringly stands on the side of individual liberty and freedom?
I don’t think so. Defending liberty is what we do.
In Nevada, our nineteen federally recognized tribes are located throughout our state, with a concentration in the North. 1.6% of Nevada’s population identified as Native American in the 2010 census, as compared with 1.2% of the country overall. The Native Nevada community experienced a great loss with the October 29th death of 38 year old Pyramid Lake Paiute Tribe Chairman Wayne Burke, who was only the first Native American to serve on the Nevada Tourism Commission and a veteran Marine who took steps to improve the educational conditions of the children in his tribe.
In 2011, Governor Sandoval joined three other states in proclaiming an “American Indian Day,” but efforts to recognize a day in honor of our country’s first inhabitants were afoot as early as 1915. In 1990, George H.W. Bush declared November “Native American Heritage Month,” and many communities utilize the month of November as an opportunity to educate the public about the contributions and conditions of Native Americans.
Across the United States, Native Americans living both on and off reservations continue to have the highest rates of poverty, drug use, and unemployment, and the lowest educational attainment rates of any minority group in the country. Basic discrimination issues surrounding the “Indian mascot” theme still arise, such as No Doubt’s “Looking Hot” video, which was released this past Friday and quickly pulled from circulation. Struggles with voting rights and practicing religious beliefs in public institutions like schools, whether wearing a medicine bag or remaining seated for the pledge of allegiance, also pervade Native daily lives.
Article I of the U.S. Constitution excludes states from “Indian affairs” by permitting only Congress the power “[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .” This Article, combined with the fourteenth amendment’s particular exclusion of “Indians not taxed,” denied Native Americans the right to vote until Congress declared their U.S. citizenship in 1924. Long after 1924, states continued to suppress, deny, and creatively redistrict in order to dilute the voting rights of Native communities.
During November’s Native American Heritage Month, consider the links between the history of internal displacement and denial of civil liberties to our Native communities, and the resulting legacy of inequality and suffering. What structures, social and political, have kept this oppression in place, and what steps can be taken to rectify our mistakes? Attend a gathering of your local tribes and perhaps you will discover our native heritage.