The Limits of the Law

Equality-minded Nevadans were appropriately thrilled last year when the legislators in Carson City expanded our state’s anti-discrimination laws to encompass gender identity and gender expression.  When the laws took effect last October, we all felt proud for helping ensure that transgender people in our state would not have their access to jobs, housing, and places of public accommodation unfairly denied.

But what happens after the confetti has fallen and the celebratory crowds have moved on to other causes?  As citizens, we trust that our government will enforce the will of the people and uphold its duty to protect the vulnerable.  Right?

Bad news.  It’s not always that simple.  

The ACLU, along with a coalition of like-minded groups and individuals, has continued the struggle for meaningful equality—not the kind merely proclaimed in political speeches—by tracking the enforcement of these anti-discrimination laws.  Naturally, our attention turned to the Nevada Equal Rights Commission (NERC), the state agency entrusted with reviewing, mediating, and determining the merit of various discrimination complaints.

Let me explain something important here.  For anyone who cares about combating discrimination in Nevada, NERC is a vital agency.  For those, in particular, who are targeted for their sexual orientation and gender identity or expression—NERC is the only agency they can go to.  Federal law does not cover these groups in any of its discrimination laws.It came to the ACLU’s attention that there was ambiguity about whether NERC would handle complaints from public school students who are suffering discrimination.  And we’re not just talking about LGBT students, but students of color, disabled students, students of faith, etc.  

You see, a lot of school districts in Nevada don’t have very strong or inclusive anti-discrimination policies.  The ACLU was even forced to litigate a case in Washoe County several years ago concerning the harassment of an Egyptian-American, Muslim high school student.  The State Department of Education doesn’t handle individual discrimination complaints, so unless they can go to NERC, our most vulnerable students have very few places to turn, other than, perhaps, hiring a private attorney. One place they sometimes turn to is the Office of Civil Rights (OCR) in the U.S. Dept. of Education, but it enforces laws against discrimination only on the basis of race, color, national origin, sex, disability, and age.

So, the ACLU wrote to NERC and requested that it officially affirm—for school districts, for students, and for the general public—that existing laws do give the agency the authority to review discrimination complaints from public schools (which, by widely accepted legal definition, fall under the category of “public accommodations”).  NERC is allowed to issue such a statement—it is well within its purview to clarify the applicability of a law that it is entrusted with enforcing.  This was a perfect opportunity for the state to educate citizens about the rights they already possess.

The ACLU, with the support of a broad coalition of other groups, appeared before the commissioners of NERC this month and asked for a formal clarification of the law that would empower and encourage students who are being harassed and intimidated.  But guess what?  It refused.  Mind you, the commissioners didn’t reject the ACLU’s argument that public schools are covered under Nevada’s anti-discrimination laws.  Instead, they refused to make any decision on the merits of the request.  Our petition was, instead, dismissed.  Their response was, essentially, “nah, we’d rather not take a position on this.”

Shouldn’t we expect more than this from the government agency that is supposed to stand up for our rights?  When Nevadans, via their elected representatives, endorse the role of government in protecting people from discrimination, we expect that the government will fulfill its side of the bargain.  At this point, it is unclear whether that’s going to happen here.  Students experiencing discrimination can knock at NERC’s door, but it’s anyone’s guess whether it will answer. 

A Rose by Any Other Name is Not as Sweet

Love is in the air. With Valentine’s Day last week, Washington State approving same-sex marriage last Monday, and the Ninth Circuit Court of Appeals overturning California’s Proposition 8 the week before, it is a good time to be in love – in some states at least. Currently, same-sex couples can only get married in seven states and the District of Columbia, but they can register as domestic partners in several others, including Nevada.

When the Ninth Circuit held in Perry v. Brown that Prop 8 is unconstitutional under the Equal Protection Clause, it did so because the law specifically targeted same-sex couples and, without a legitimate reason, took away their existing right to marry in California. The court also recognized the “extraordinary significance” of marriage, stating:

‘[M]arriage’ is the name that society gives to the relationship that matters most between two adults.  A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not . . . It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit’s commentary on the sweet smell of “marriage” and the not-so-sweet smell of a “registered domestic partnership” focuses on the human elements of marriage—the emotions and the societal status ingrained within a marital union.  The Ninth Circuit ultimately held that “Proposition 8’s only effect . . . was to withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of a societal status that affords dignity to those relationships.”

After Perry, marriage equality gained added momentum with the passage of Washington’s same-sex marriage law.  On February 13, 2012, Governor Chris Gregoire signed a measure legalizing same-sex marriages in Washington which will take effect on June 7, 2012.  During the signing ceremony, Governor Gregoire stated, “this is a very proud moment for the state of Washington . . . it's a day that historians will mark as a milestone for equal rights — when [Washington] did what was right, just and fair and did it together, Republicans and Democrats, gay and straight, young and old.”

The fate of Perry and the Washington same-sex marriage law are still uncertain.  Perry may be appealed and heard by the U.S. Supreme Court, and opponents of same-sex marriage are challenging the Washington law by collecting signatures for a referendum vote.

However, same-sex couples can celebrate knowing that positive steps are being made to advance equality in marriage.  More importantly, the discussion regarding the same-sex marriage debate seems to be shifting toward the significant social status that all people, gay or straight, attribute to marriage. Despite the similarities of a marriage and a domestic partnership and the plethora of rights and responsibilities given to registered partners, there is no denying the fact that symbolically speaking, a “registered domestic partnership” is just not as sweet as a “marriage.”

by Franz Español, ACLU of Nevada Legal Intern

Preventing the Tyranny of the Majority is in the Original Plan

When Chris Christie last week threatened to veto (and then did) the same-sex marriage bill passed by the New Jersey state legislature, saying it should be put to a vote of New Jersey residents, Gov. Christie perhaps thought he would look like the ultimate democrat (with a small “d”) to independents and perhaps even some liberals. And many conservatives, no doubt, thought that they could defeat same-sex marriage at the ballot box when they couldn’t win in Trenton, either the New Jersey legislature or in the New Jersey Supreme Court.

But the issue of who should make the decision in New Jersey about same-sex marriage is not merely about strategies and tactics by each side figuring out where it has the best chance to prevail. The reason why same-sex marriage rights may need to be gained in some places—perhaps everywhere—by a vote of the U.S. Supreme Court, and certainly preserved by the U.S. Supreme Court when granted, is that the U.S. Constitution was designed so that constitutional rights would not be put up to votes of the general public. Instead, fundamental rights were granted by the U.S. Constitution, and the individual state constitutions, and at least the U.S. Constitution was designed to be very difficult to amend. And what the various constitutions meant, when there was a dispute, always has been ultimately up to courts, not Congress, not legislatures, and not votes of the general public. Moreover, the best thinking is that judges should be thoroughly vetted and appointed, not elected, although they are still elected in many states.

It is particularly ironic that many Americans complain about so-called “activist judges,” especially when those judges explicitly affirm constitutional rights. The U.S. Supreme Court has been reviewing acts of Congress for constitutionality since Marbury v. Madison in 1803. If that is judicial activism, judges have been “active” for more than 200 years, not only since some mythical starting point during the New Deal or while the Republican Earl Warren was chief justice.

The Founding Fathers didn’t get everything right (note African Americans originally each being counted as 3/5 of a citizen, black men not obtaining the federal right to vote until 1870 [15th Amendment], and no women having a federal right to vote until 1920). But the Founding Fathers understood the problem of the “tyranny of the majority”—the likelihood of most citizens being so uninformed about constitutional law, so uninformed on relevant facts, and/or flat-out irrational that they might vote not only in favor of silly statutes or unfair taxes or appalling political candidates, but that they would support basic constitutional rights being denied their fellow citizens. (Protecting against the tyranny of the majority was the reason behind all of the checks and balances: veto power, staggered election terms, differences between the U.S. House and U.S. Senate, even designing a representative—not direct—democracy in the first place.) Whatever one thinks about a particular judge, or judges generally, they know more about constitutional law than the average voter, or the average politician, and what judges don’t know, they find out before making decisions. They also are sworn to uphold constitutional rights—it’s in their job description—which certainly is not true for the average voter.

One doesn’t even have to get into issues in which some claim that multiple constitutional rights conflict (such as abortion rights) to see lack of support of, or at least widespread apathy about, fellow citizens’ constitutional rights. Try engaging most Americans in any conversation about jail and prison conditions (8th Amendment warning!) or the military’s treatment of the news media (1st Amendment alert!) anywhere near a war zone, and they either categorically support whatever the government is doing (or not doing, as the case may be), or don’t care.

In fact, polls about knowledge of and opinions about basic constitutional rights are appalling and could make one wonder about the wisdom (if it weren’t for the necessity) of putting anything up to a vote of the general public. For instance, in the First Amendment Center’s national poll in July 2011, 38% of Americans did NOT know that freedom of speech is protected by the First Amendment, 25% of Americans think it is NOT important for news media to monitor government (and only 54% of Americans agree strongly that news media should be government watchdogs). Eighty-one percent of Americans did not know the First Amendment protects freedom of religion, 83% did not know the First Amendment protects freedom of the press, and 86% did not know the First Amendment protects freedom of assembly. Surprisingly, this is after the U.S. public’s support of certain media rights and privileges, such as being able to keep sources confidential, has gone up!

One role and goal of the American Civil Liberties Union is to try to educate Americans about their constitutional rights (education that they apparently are not getting at home or in school), but—as one can tell—it is an uphill battle.

Finally, problems with putting constitutional rights up for a public vote are not new. In 1915, for example, New Jersey put a woman’s right to vote on the ballot, and it failed. Only four years later, Congress passed the 19th Amendment. By the next year, 1920, that amendment had been ratified by enough state legislatures to pass, including New Jersey’s.

These are not mere complaints, but facts that cannot be wished away, and—given the connection between lack of knowledge of constitutional rights and lack of support for them—proof that our fellow citizen’s ignorance has consequences for the rest of us. Granted, judges are not all-knowing, wise Renaissance persons, and they also make mistakes, but as a people we have, by design, put trust into judges, rather than the guy next door, to protect our constitutional rights. And, over the long run, it was the right decision.

Indeed, the New Jersey Supreme Court already ruled (Lewis v. Harris, 2006) that the New Jersey Legislature must provide marriage-like rights to same-sex couples. The New Jersey Legislature has now voted to provide not only “marriage-like” rights to same-sex couples, but to provide marriage itself to same-sex couples. (A vote of New Jersey citizens might even agree, if it were a good idea to put individuals’ constitutional rights on election ballots.) It is Governor Christie, a Republican trying to look democratic, who is out of line here, not the New Jersey Supreme Court and not the New Jersey Legislature.

The Business of Love in Nevada

It’s Valentine’s Day and it seems appropriate to write about the business of love in Nevada.  Just as the holiday has a more complicated history than a card company’s campaign, (there is the feast day of the Christian St. Valentine and the ancient pagan fertility festival Lupercalia) so too is one’s wedding day more complicated than just saying “I do.”

Naturally, planning to marry requires a great many decisions, some financial, some spiritual, but all very personal. One of the most personal decisions could be deciding who will officiate the public ceremony when two people commit their lives to each other. Many would prefer that person to be someone they are familiar with and respect, perhaps their spiritual guide.

One couple in Nevada is fighting to have the ceremony officiant of their choice. Claire Lichtenstein and Wesley Wertz are planning their wedding but are unable to find just the right person to marry them. They wish to be married by a nongovernmental individual in a nonreligious ceremony. However, because Nevada Revised Statutes dictate that only a minister or a judge can officiate a wedding ceremony, they cannot.    

Under this law, Clark County has denied permission to officiate a wedding to individuals who are not ministers or judges. Three of them, Raul Martinez, an atheist, has been denied an officiant certificate twice. Michael Jacobson, a humanist, has also been denied, and Paula Newman, a notary public, declined even applying for a certificate because she believes her application will be rejected as well.  

Some people might say, “What’s the big deal?” But when my then-fiancé and I planned our wedding, we wanted our officiant to be free of religious association. Instead of compromising our beliefs, we chose to hold a wedding ceremony with two family members leading the way. It was a deeply spiritual ceremony of commitment, honoring our own spiritual, nonreligious paths, but because neither had an officiant’s certificate, it was not legally binding. We had to allow a total stranger, a Judge, to legally marry us on another day. Because of our honest spiritual beliefs, we were denied the opportunity to be legally and contractually bound to one another by a person of our choice.

The First Amendment says that Congress cannot make a law respecting the establishment of religion and the ACLU believes that requiring one’s nongovernmental wedding officiant to be associated with a religion is a violation of this Constitutional right.  In fact, the ACLU lobbied in 2009 and 2011 to amend the state statutes to include notary publics as people who can officiate at a wedding, but we were not successful.

On behalf of the five Nevadans mentioned earlier, the ACLU of Nevada filed suit in 2011 arguing that requiring religious affiliation to perform a marriage is unconstitutional. The ACLU of Nevada is hopeful that the judge will find that respected people unassociated with a church will also be allowed to lead a couple through a legally binding marriage.  

As for me and my husband, every year we celebrate our anniversary on the date of our own ceremony, not the legally binding ceremony, for this is the day our journey together officially began.

Happy Birthday, Roger Baldwin!

“So long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.”
-Roger Baldwin

With all of the civil rights leaders who have passionately fought and died in the struggle to make sure that all Americans will have their rights protected, there is one who holds true to many ACLU members and supporters: Roger Baldwin.

Baldwin was a committed pacifist and was tapped to lead the American Union Against Militarism (AUAM), an organization opposed to American involvement in the First World War.  With Attorney General A. Mitchell Palmer ordering crackdowns and raids against protesters, Baldwin and the AUAM were confronted with the reality that political activism and civil liberties go hand in hand. Baldwin solicited the AUAM to form a legal division that could assist in the protection of civil liberties. At a time where dissent was met with fierce hostility, Baldwin and the Civil Liberties Bureau of the AUAM stood at the forefront of the defense of the First Amendment.

 The Civil Liberties Bureau separated from AUAM, changed its name to the National Civil Liberties Bureau and, in 1920, again changed it to the current name, the American Civil Liberties Union.  Under the direction of Roger Baldwin, the ACLU became a vital civil rights organization with interests in all civil rights issues.  Several major landmark cases of his time were the ACLU’s involvement in Brown v. Board of Educationthe Scopes “Monkey Trial,”  Roe v. Wade,  and representing James Joyce when his novel Ulysses was seized by U.S. customs officials for being obscenity "of the rottenest and vilest character."

On January 21, 2012, what would have been Baldwin’s 128th birthday, we will celebrate not only the birth of the ACLU’s founder, but also celebrate the life of an organization that will support your right to express whatever you believe.  With many people under the impression that traditions don’t last in this country, the Bill of Rights is one tradition that has lasted and will last as long as there are people willing to fight for their rights.  


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