California, which has the largest sex offender registry in the United States, has received the news from the California Sex Offender Management Board that their registry is not working. The board reported that the fast-growing registry included too many unnecessary people and that it did not help law enforcement or the public differentiate potentially risky offenders from those who would likely not reoffend.

The board reported that about 95 percent of solved sex crimes are committed by people who are not on the registry, and said that the registry was created, in part, on assumptions that have since been proved to be wrong. The board called for an overhaul of the registry.

The board recommended to the California legislature that only high-risk offenders, such as violent predators and kidnappers–that is, offenders whose offenses are also characterized by something other than sex–should be required to register for life.

The list currently has 100,000 offenders registered, and is growing. California requires lifetime registration of all sex offenders. The nature or circumstances of the offense are not usually relevant to registration.

When the board reported earlier this year, they had found that the registry included many offenders “who do not necessarily pose a risk to the community.” Nine hundred such registered offenders last offended more than 55 years ago.

The registry is also used for Megan’s Law, a tool of law enforcement used to notify the public about sex offenders. It offers the public a searchable website of what are considered the most serious registered sex offenders. However, around 80 percent of all of California’s 100,000 registered offenders are posted on the Megan’s Law website.

In 2011, the California Sex Offender registry was audited. The audit found that the government department responsible for the state’s prison and parole system, the Department of Corrections and Rehabilitation, had been illegally abusing the sex offender registry by forwarding all offenders for examination as possible sexually violent predators rather than using discretion. That is, anyone convicted of any sexual offense was forwarded to be considered for classification as a violent offender and so registered. The law did not permit this.

Not only that, since 2005, the audit found that although 59 percent of released sex offenders violated parole, only 1 percent committed a new offense. That one percent represented 134 convicts. Of those 134, only one committed a new sex offense.

California State Auditor

SFGate

On The Media

NPR

Pop Sugar

Freakonomics

The post Nation’s Largest Sex Offender Registry Finds Sex Offender Registry Does Not Work appeared first on The Speaker.

Arizona Senator Steve Yarbrough sponsored the bill that has now passed the Arizona state Senate as SB1062 in response to several trials in which people who had denied particular services requested for gay weddings had been sued under Arizona’s human rights laws, essentially forcing people in any business (other than private clubs and churches) to serve gay weddings even if their religious beliefs are contrary.  One such case was Elane Photography v. Willock (2013) (case and trial summary), in which a Christian photographer was sued for discrimination because she declined to photograph a gay wedding due to her religious convictions.

The Arizona bill was first drafted in January with the intention that it would protect religious rights (already protected by the First and Fourteenth Amendments but ruled by Arizona’s high courts to be inferior to the protections written into the state’s anti-discrimination laws, which contain special protections for several named “protected groups,” including those who have sexual orientation toward the same-sex.

The bill amends the existing Arizona Religious Freedom Restoration Act to read:

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

C. Government STATE ACTION may substantially burden a person’s exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both: In furtherance of a compelling governmental interest. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.

E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH ALL OF THE FOLLOWING: THAT THE PERSON’S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A RELIGIOUS BELIEF. THAT THE PERSON’S RELIGIOUS BELIEF IS SINCERELY HELD. THAT THE STATE ACTION SUBSTANTIALLY BURDENS THE EXERCISE OF THE PERSON’S RELIGIOUS BELIEFS.

F. THE PERSON ASSERTING A CLAIM OR DEFENSE UNDER SUBSECTION D OF THIS SECTION MAY OBTAIN INJUNCTIVE AND DECLARATORY RELIEF. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs. E.

G. In FOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

H. FOR THE PURPOSES OF THIS SECTION, “STATE ACTION” MEANS ANY ACTION, EXCEPT FOR THE REQUIREMENTS PRESCRIBED BY SECTION 41-1493.04, BY THE GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.

The text of the bill contains several pieces of language that reflect the decisions of the New Mexico Supreme Court in its finding against Elane Photography last summer (August 2013).

In Section D., the bill allows assertion of religious rights “regardless of whether the government is a party to the proceedings.”  In Elane, the court ruled that Elane’s argument that the New Mexico Human Rights Act (NMHRA) (under which Elane was charged with discrimination) violated the New Mexico Religious Freedom Restoration Act (NMRFRA) was not a valid argument because the NMRFRA was not applicable in disputes where a government agency is not a party.

In Section F., the bill provides injunctive and declaratory relief, including attorney fees and costs, for people successfully asserting a claim under the bill (should it become an act).  In Elane, Elane Photography was sued for attorney fees to the amount of $6,637.94, payable to Vanessa Willock, the woman who propositioned Elane Photography to consider photographing her gay wedding.  Willock’s dealings with Elane only amounted to a few emails inquiring about service, and Willock found another, cheaper photographer for her wedding.  Elane, which was found guilty of discrimination, sought in its three trials (and seeks in its pending petition to the U.S. Supreme Court) a reversal of the award and a declaratory judgement that it had not discriminated, as well as a ruling that its rights had been violated.

By Day Blakely Donaldson

Sources:

Land and Sea Journal
AZ Central

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After Elane Photography, LLC, was ruled against unanimously by the New Mexico Supreme Court in August, 2013, Elane petitioned the U.S. Supreme Court to review the issue of whether a religious person who works as a photographer must be forced to photograph a gay marriage, in accordance with the New Mexico Human Rights Act (NMHRA), if that person is asked by a homosexual to so do (case and trial summary).

The question asked of the Supreme Court in the petition, written by the Alliance Defending Freedom (headed by Jordan Lorence) is this:

“Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.”

In 2006 a small limited liability husband-and-wife photography business, specializing in photo-journalistic wedding photos (the company creates photographs and a picture-book telling the story of a wedding), declined to photograph a lesbian wedding, after which Vanessa Willock, the woman who contacted the Huguenins (the couple who owned Elane Photography) with the proposal, filed a complaint with the New Mexico Human Rights Commission (NMHRC), claiming that she had been discriminated against based on sexual orientation by Elane Photography. The NMHRC found that she had. The case proceeded through the district court and appeals court to the New Mexico Supreme Court. All courts agreed with the NMHRC that Elane was guilty of discrimination based on sexual orientation.

Elane Photography denied this charge before the first hearing of the case and still denied the charge after the New Mexico Supreme Court ruling and at the time of the current petition to the U.S. Supreme Court. Elane Photography has always held that it will serve any person, regardless of class, but will deny requests by any person to do work that Elane believes is wrong.

The petition filed by Elane Photography also expressed concern that by compelling artistic workers to speak in conflict with their consciences–in violation of First Amendment freedoms of expression-drives these workers from the marketplace. The petition asked the Supreme Court to answer whether the First Amendment permits this. “Whether professional creators of speech are disqualified from this First Amendment protection–and thus whether their expression creating skills may be co-opted by private parties through government coercion–is a question of great national importance,” the petition states.

The petition points to the language of the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” The petition also looks at precedent case law, which, although cited by the New Mexico Supreme Court in its finding against Elane, is claimed to rather conflict with the decision made by that same court. The petition also states that the New Mexico Supreme Court’s decision requires citizens to speak in conflict with their religious beliefs and deepest convictions any time they are working as a public accommodation (a business that is used by the public, whether a public or private entity–including retail stores, rental establishments, service establishments, but not including private clubs or religious institutions).

By Day Blakely Donaldson

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In the 2013 trial, Elane Photography, LLC, v. Vanessa Willock, Willock sued Elane Photography for refusing to photograph Willock’s “commitment ceremony” i.e. wedding. The New Mexico Supreme Court unanimously found that Elane–despite religious convictions against gay marriage and despite her willingness to serve gays in services Elane already provided–violated the New Mexico Human Rights Act (NMHRA) that provides for protected groups to be specially shielded from discrimination. The court found that Elane had discriminated based on sexual orientation and was not protected by Constitutional guarantees of free speech or the free exercise of religion. Elane was forced to pay damages to Willock for declining to photograph her wedding.

In 2006, Willock e-mailed Elane Photography, LLC (operated by a couple, the Huguenins), proposing Elane photograph Willock’s “commitment ceremony,” which Willock also referred to as a “wedding.” Willock phrased the proposition as asking Elane Photography if it would be “open to helping celebrate” her “commitment ceremony.” Elaine Huguenin, the photographer, politely declined, stating that she photographed only “traditional weddings.” Willock e-mailed Elane Photography again two months later, asking whether Elane offered its “services to same sex couples,” to which Huguenin responded that the company did “not photograph same-sex weddings,” and thanked Willock for her interest.

Willock filed a discrimination complaint with the New Mexico Human Rights Commission (NMHRC) on the basis that Elane Photography discriminated against her because of her sexual orientation. The NMHRC concluded that Elane Photography had so discriminated. It awarded Willock attorney fees (later waved by Willock).

Elane appealed for a trial de novo, seeking a reversal of the award and a declaratory judgement that it had not discriminated, as well as a ruling that its rights had been violated. The district court found for Willock. Elane appealed, and the Court of Appeals affirmed. The New Mexico Supreme Court granted certiorari.

Elane offered three arguments. First, that it had not discriminated. Second, that the NMHRA violated Elane’s First Amendment rights, under the Amendment’s compelled speech protection and freedom of religion guarantee. Third, that the NMHRA violated the New Mexico Religious Freedom Restoration act (which protects free exercise of religion from government restrictions).

Although Huguenin would have served homosexuals in any of the services Elane Photography already provided (portraits, straight marriage) and would not have served heterosexuals with photography that depicted homosexual content (holding hands or showing affection), the opinion of the court was that “[t]hose situations are not at issue here,” and that “Elane Photography intended to discriminate against Willock based on her same-sex orientation.” The court framed Elane’s claims as “[seeing] no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct.” The NMHRA prohibited “any person in any public accomodation to make a distiction, directly or indirectly, in refusing to offer services.” Although Elane Photography was willing to serve homosexual couples, the court found that Elane Photography had “[refused] to serve a client based on sexual orientation, and Elaine Photography violated the law by refusing to photograph Willock’s same-sex commitment ceremony.” The court, therefore, held that Elane Photography had discriminated in violation of the NMHRA.

As for the reasons for Elane’s refusal to photograph the gay marriage, Elane explained that it “did not want to convey through [Huguenin's] pictures the story of an event celebrating an understanding of marriage that conflicts with [the owner's] beliefs.” Elane Photography held that it did not wish to endorse Willock’s wedding.

Elane’s argument that the NMHRA violated First Amendment guarantees had several components. Under the Free Speech Clause (in this case, compelled speech), Elane argued that the NMHRA compelled Elane to speak, compelled Elane to speak the government’s message, compelled Elane to accommodate the message of another, compelled Elaine to allocate its work time not as Elane would wish, and compelled Elane’s creative, expressive capacity. Also under the First Amendment, Elane argued that its guarantee to free exercise of religion was violated by the NMHRA.

Elane argued that, because photographing a same-sex wedding was against the owners’ personal beliefs, the NMHRA’s compelled Elane to speak in violation of its First Amendment rights (which includes the right to refrain from speaking). Elane argued that the HMHRA unconstitutionally compelled it to “create and engage in expression” that sends a positive message about same-sex marriage not shared by the owner. The court looked at the guarantee that the government “may not require an individual to ‘speak the government’s message,’” and may not require a private actor “to host or accommodate another speaker’s message” or “require an individual to participate in the dissemination of an ideological message by displaying it on his [or her] private property in a manner and for the express purpose that it be observed and read by the public.” The court ruled that “the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accomodation, it cannot discriminate against potential clients based on their sexual orientation.” The court looked to Barnette (Jehovah’s witnesses protesting saluting the flag at school because of Bible prohibitions against saluting any image), but found that Barnette “[did] not bring [the Jehovah's witness children] into collision with rights asserted by any other individual,” but Elane’s asserted right did conflict directly with Willock’s rights under the NMHRA. The court stated that “[a]nti-discrimination laws have the important purposes that go beyond expressing government values: they ensure that services are freely available in the market, and they protect individuals from humiliation and dignity harm.” To the argument that by requiring Elane Photography to accept a client who is having a same-sex wedding the NMHRA compelled Elane to facilitate the messages inherent in that event, the court ruled that,

“Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation.”

Although Elane argued that it did not with to convey a message either that same-sex marriages exists or that such occasions deserve celebration or approval, the court ruled that “Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so,” and therefore, the court ruled, the NMHRA required Elane to perform the same services for same-sex couples as for opposite-sex couples (equating the service of providing photography for opposite-sex weddings with the service of photographing same-sex weddings).

Elane argued that the NMHRA involved “direct government interference with the speaker’s own message, as opposed to a message-for-hire.” The court looked to cases where the government required a publisher to distribute an opposing point of view (Miami Herald Publishing Co. v. Tornillo), upholding the publisher’s rights, but ruled that Elane was different because “[the] government had not interfered with Elane Photography’s editorial judgement; the only choice regulated is Elane Photography’s choice of clients.”

Elane also argued that the NMHRA had a chilling effect on speech. The court ruled that “[i]f a commercial photography business believes that the NMHRA stifles its creativity, it can remain in business, but it can cease to
offer its services to the public at large. Elane Photography’s choice to offer its services to the public is a business decision, not a decision about its freedom of speech.”

The court also looked to Hurley (where the court upheld the private organizers of the Boston St. Patrick’s Day parade’s denial of the application of a LGBT group [GLIB] to march in the parade), but found that, although the Supreme Court had held that the parade did not discriminate against gay participants; rather, the issue was “the admission of GLIB as its own parade unit carrying its own banner,” which had unquestionable expressive content, Elane differed because, whereas “parades by their nature express a message to the public,” and that requiring the parade organizers to include GLIB would “directly alter the expressive content of the parade,” the case did not apply to Elane because the NMHRA “applies not to Elane Photography’s photographs but to its business operation, and in particular, its business decision not to offer its services to protected classes of people.” The court ruled that “[w]hatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public,” but at the same time noted that “when Elane Photography displays its photographs publicly and on its own behalf, rather than for a client, such as in advertising, its choices of which photographs to display are entirely its own.”

The court also stated that Elane’s concern of “perceived endorsement” was wrong. “Obeservers are unlikely to believe that Elane Photography’s photographs reflect the views of either its owners or its employees,” ruled the court, finding Elane different again from Hurley, where the Court “observed that admitting GLIB or any other organization into a parade would likely be perceived as a message from the parade organizers ‘that [GLIB’s] message was worthy of presentation and quite possibly of support as well.’”

The court saw Elane’s First Amendment right to expression of religeon as being retained despite NMHRA limitations in this way:

“Elane Photography and its owners likewise retain their First Amendment rights to express their religious and political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that “they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”

The Court considered Elane’s argument that they had less time to spend doing their preferred work if they have to take and edit photographs of same-sex weddings (thereby creating a situation of compelled speech), but found that the claim was not valid, because “Elane Photography does not produce a publication whose limited space has been taken over by the government.” The court found that Elane’s claim that the NMHRA interferes with its speech because it ties up its time doing what it does not wish to do was invalid “because the allocation of work time is a matter of personal preference, not compelled speech, and it is not constitutionally protected.”

The Court explained that the NMHRA forces businesses to act a certain way:

“This is the purpose of antidiscrimination laws: they force businesses to treat customers alike, regardless of their race, religion, or other protected status. These laws are necessary precisely because some businesses would otherwise refuse to work with certain customers whom the laws protect.”

The court noted that the NMHRA does not prohibit law firms (even law firms that are public accommodations) “from turning away clients with whose views the firm disagrees or with whom it simply does not wish to work.” However, the court ruled, Elane (and law firms) cannot turn away clients because they “find the client offensive on the basis of a protected classification.”

Elane’s argument for freedom of religious expression was found invalid because “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),” and the NMHRA was a neutral law of general applicability, as stated in its text.

The U.S. Supreme Court, however, left open the possibility that neutral laws of general applicability could still be unconstitutional if they infringed both free exercise rights and an independent constitutional protection (hybrid-rights claim), but because Elane Photography had not sufficiently briefed the Court on this issue, the court would not consider it.

Elane Photography’s final line of argument was that the NMHRA violated the New Mexico Religious Freedom Restoration Act (NMRFRA), but the court ruled that the NMRFRA was not applicable in disputes where a government agency is not a party.

The court concluded that Elane Photography refused to serve Willock based on Willock’s sexual orientation, and so was in violation of the NMHRA. The court found that enforcing the NMHRA did not violate the First Amendment or the NMRFRA.

In the concurring opinion, justices wrote that although the Huguenins were now “compelled by law to compromise the very religious beliefs that inspire their lives,” “all of us must compromise, if only a little,” which is what this case “taught,” and that although the Constitution protects the Huguenins in their freedom “to think, to say, to believe, as they wish,” “there is a price.” “[T]he Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different…. it is the price of citizenship.”

By Day Blakely Donaldson

Sources:

Justia
Justia
State Court Docket Watch
Federalist Society

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The post New Mexico Forces Christian Photographers to Serve Gay Weddings – Elane Photography v. Willock (2013) appeared first on The Speaker.

Criticism by privacy advocates has caused the U.S. Homeland Security Department (DHS) to review its proposal for private companies to provide the government with a U.S.-wide database of licence plate tracking information.  The concerns raised by privacy advocates include the gratuitous nature of the privacy intrusion, the lack of regulations and safeguards regarding the data collection, and the lack of measures that would provide for audits of the system.

The data collection proposal by the DHS was made public Feb. 12 on the government website, Federal Business Opportunities.  The website, also known as Fed Biz Ops, is a public access service on which all Federal Procurement Opportunities over $25,000 are available to view.  The DHS’s solicitation was for a private company to collect, store, and provide license plate data on a national scale.  The data collection, similar to the NSA’s bulk telephony data collection, would constantly track and forever store the movements of vehicles across America.  Like telephone metadata, location data can often tell more than content data about behavior and activities.  Jennifer Lynch, attorney at Electronic Frontier Foundation, explained that this type of data can tell who a person associates with, what religion they practice, and what doctors they visit, among other information.

One concern raised by privacy advocates is that a program such as the one proposed would track the behavior and activities of non-criminal citizens.  Privacy advocates consider this an imposition and do not believe the imposition has justification in its benefits to law enforcement.  Another concern is that the proposed program had no specific regulations or safeguards.  There was no telling low long records would be kept or what government agencies besides the DHS would have access to the records. Relatedly, the method of use for the system included anonymous, alias, and full identity use, which caused privacy advocates concern because there would be no way to audit the use of the database and so no way to know which information requests were legitimate or hold accountable unidentifiable abusers of the system.

Mike German, a former F.B.I. special agent and current fellow at New York University School of Law’s Brennan Center for Justice, speaking on behalf of the American Civil Liberties Union, stated that there should be “strict public guidelines” about what information is collected, who has access to that information, and for what purposes the information is allowed to be used.   German also commented on government claims that the information was necessary to help solve serious crimes, saying that the information is often used for very low-level crimes.

The plan proposed by the DHS was for a commercial enterprise to collect and store license plate data (rather than the government creating its own database).  The targets of the plan, according the DHS, were fugitives and undocumented immigrants.  The system would have allowed officers of the law, once those officers had an investigative lead, to query the database with plate numbers to determine where and when the vehicle traveled.  The plan included a smartphone ap so that information records would be available around-the-clock and from any location.

Currently, several large private companies are already providing license plate data to businesses and law enforcement agencies.  Law enforcement agencies have used these services to recover abducted children, solve murders, and track down automobiles for repossession.  License plate databanks also reduce surveillance man-hours and improve the safety of law enforcement officers, according the U.S. immigration and Customs Enforcement (ICE) agency.

The U.S.-wide license plate data collection program proposal was cancelled by the Department of Homeland Security the week after it was submitted.  No official reason was provided for why the proposal was made or why it was withdrawn. Gillian Christensen, a spokesperson for ICE, announced that the proposal had been made “without the awareness of the ICE leadership.”

By Day Blakely Donaldson

Sources:

Businessweek
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Burlington Free Press

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In the 80s and 90s, laws against homosexual activity were first upheld as not in violation of Constitutional rights and later reversed as being in violation–Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).

In Bowers v. Hardwick, two Georgia men were arrested for sodomy when a police officer tasked with serving a warrant for public drinking found the men engaged in sex at Hardwick’s home. After the local district attorney decided not to proceed with the case, Hardwick brought suit against the Attorney General of Georgia, Michael Bowers, seeking a declaration that the state’s laws against homosexual sex were invalid. The ACLU wanted to try the case. The district court found for the Attorney General, the appeals court reversed this, and the case proceeded to the Supreme Court.

The result was that the Supreme Court found against Bowers in a 5-4 decision. The court found no constitutionally protected right to engage homosexual sex and upheld the Georgia statute as valid. Justice White wrote the majority opinion, which cited historical precedents condemning homosexual sex.

The dissenting opinion was written by Justice Blackmun (although Blackmun has since revealed that it was in fact his clerk who primarily authored the dissent), who disagreed with the majority’s focus on homosexual activity, writing that the case was no more about a right to engage in sodomy than Stanley (1969) was about a right to watch obscene movies or Katz (1967) was about a right to place interstate bets from a telephone booth; these cases, Blackmun contended, were about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone,” quoting Justice Brandeis in Olmstead (1928). Blackmun continued, “Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens,” and stated that his finding was that the Georgia law under which Bowers was being tried was broad enough to also reach heterosexual couples engaging in anal or oral sex.

“(A) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .”

“(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .” (Georgia Code Ann. § 16-6-2 [1981])

Blackmun wrote:

“Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,’ Paris Adult Theatre I v. Slaton (1973); Carey v. Population Services International (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.”

Blackmun pointed not to a specific right to engage in homosexual activity, but to broad principles that have informed the treatment of privacy in specific cases. Blackmun held that the same protections that defended liberty and privacy interests in those other cases should apply in Bowers.

Blackmun again referred to Brandeis in Olmstead:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”

At the time of Lawrence v. Texas (2003), it was illegal in 13 states to engage in consensual homosexual sex–this number was down from 25 at the time of Bowers, although it has been noted that a certain pattern of nonenforcement with respect to consenting adults acting in private had existed. That number was in turn down from 50 before 1961.

Lawrence and a man visiting his house were arrested on the night of September 17, 1998 outside Houston, Texas, when a jealous rival called in a false police report about “a black male going crazy with a gun” in Lawrence’s apartment. After contradicting accounts of homosexual activity by the arresting officers, the two men were charged and pled no contest to “homosexual conduct.” The jealous lover pled no contest to filing a false police report and was sentenced to 30 days in jail.

Lawrence et al. opted neither to plea their innocence nor to accept a minor fine and criminal charge, but to take on the law that outlawed, in effect, homosexuality.

By pleading no contest, Lawrence at al. waved their right to a fair trial, but asked the court to dismiss the charges on the basis of the unconstitutionality of the anti-sodomy laws. Lawrence claimed that because the law prohibited sodomy between homosexual couples, but did not prohibit sodomy between heterosexual couples, the law was unconstitutional under Fourteenth Amendment equal protection grounds:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

After being denied the Fourteenth Amendment defense motion in their first trial, Lawrence appealed, and the Texas Fourteenth Court found that the Texas law violated the 1972 Equal Rights Amendment of the Texas Constitution (sec. 3):

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative”. (Added Nov. 7, 1972.)

The Appeals court found the law unconstitutional, but a year and a half later reviewed the case en blanc and reversed the decision, finding the law constitutional.  Lawrence petitioned the Supreme Court, asking the Court to consider:

1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?

2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick should be overruled?

The Supreme Court, which examined the case in terms of “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct,” found that consenting adult homosexuals had a right to sex in their homes. The Texas law, which outlawed “any contact between any part of the genitals of one person and the mouth or anus of another person; or… the penetration of the genitals or the anus of another person with an object” (§21.01[1]), was unconstitutional, violating the Fourteenth Amendment Due Process Clause, the Court found.

Justice Kennedy wrote the majority opinion, in which he criticized the judgement of Bowers and placed Lawrence in a tradition of Constitutional interpretation with Griswold, Eisenstad, Roe, Planned Parenthood, Bowers and Romer, framing a narrative of progressive application of Amendment guarantees to privacy protections regarding human rights.  The majority viewed Bowers this way:

“[T]he Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

The court looked to determine “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”  The majority found that they were.  The court sought to find if any valid state claims existed that would pass the strict liability test. According to the majority opinion:

“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

A 6-3 decision stuck down the Texas law.  The court overturned Bowers v. Hardwick.

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Kennedy offered an opinion on privacy in general and the court’s opinion on homosexual sex regarding Lawrence particularly:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

*     *     *     *     *

The differing interpretations of Amendment guarantees and reliance on other informative sources such as caselaw, moral codes, and traditional attitude towards various groups of people or activities in Bowers and Lawrence show a lack in the U.S. Constitution to provide expected human rights protections for homosexuals.

In Bowers, the dissenting opinion of the Court followed, expanded and extended interpretations of Amendment guarantees found in Griswold (1972) and Eisenstadt (1972) to sexual privacy rights for homosexuals. The majority disagreed, however: it found that there was no Constitutional protection for homosexual sex. But this opinion based its decision on a tradition of condemning homosexuality.

This decision was overturned in Lawrence, but the Constitutional basis was questionable. In Lawrence‘s 6-3 decision, five justices believed the statute violated Fourteenth Amendment Due Process Clause and one–who had been in the Bowers majority–believed it violated rather the same Amendment’s equal protection guarantees.

The majority opinion explained that “the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution,” and sought to find what the Due Process Clause protected. Kennedy’s opinion listed a progression of Court interpretations of Amendment guarantees in a sort of narrative scheme of liberating rulings, starting with Griswold and proceeding through Eisenstadt and Roe to Planned Parenthood to Bowers and Romer.

Griswold recognized the right of privacy in the home of married people and Eisenstadt extended the protection to unmarried couples for any procreative (or not) sexual activity. Eisenstadt had based this right on the Equal Protection Clause. Although the Lawrence Court favored the Due Process Clause as a basis for protection, Justice Kennedy quoted Brennan in Eisenstadt for an extension of privacy protections to homosexuals:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship …. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The basis of this protection in the Due Process Clause was argued as false by many dissenters. Justice Scalia wrote:

“Though there is discussion of ‘fundamental proposition[s],’ and ‘fundamental decisions,’ nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: ‘[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.’ Instead the Court simply describes petitioners’ conduct as ‘an exercise of their liberty’-which it undoubtedly is-and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”

An oral argument at Lawrence‘s Supreme Court trial questioned the propriety of protecting any consensual adult sexual activity in the privacy of a home, stating,

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold… .”

By Day Blakely Donaldson

Sources:

Justicia
Justicia
L&SJ (American Bill of Rights)

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The post Constitutional Interpretations Can Be Found to or Found Not to Give Rights to Homosexuals – Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) appeared first on The Speaker.

The employment of the U.S. Constitution to protect rights not explicit in its writing took shape in the 60s around birth control and abortion laws in Connecticut, Texas and elsewhere. Two such cases were Griswold v. Connecticut (1965) and Roe v. Wade (1973).

In Griswold v. Connecticut, an 1879 statute against contraceptives–which had almost never been enforced and had evaded judicial review until this trial–was put in question when a pair contraceptives activists opened a clinic.  The statutes read:

“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”  (§§ 53-32 of the General Statutes of Connecticut)

In past decades the statute had been questioned, but a case had not come up by which the statute could be challenged. Poe v. Ullman (1961) had been brought by a doctor on behalf of his patient, but the court decided that the case was not ripe because there was no actual threat or charge and so, the court reasoned, no actual controversy to resolve. Justice Harlan filed a dissenting opinion in Poe in which he wrote, taking a broad view:

“[I]nasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints… and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”

In Griswold the Connecticut statute against birth control was tested by a planned parenthood activist and a doctor who together opened a birth control clinic and were arrested, tried and fined as accessories to the crime of using contraception. The decision of the district court was upheld by the appellate and Connecticut Supreme Court, and so proceeded to the U.S. Supreme Court, where a 7-2 decision was handed down invalidating the Conecticut anti-birth control statute on the basis of a constitutional “right to marital privacy.”

Estelle Griswold and Dr. C. Lee Buxton had argued that the Constitution protects a right to privacy that includes birth control under the Fourteenth Amendment’s (Sec. 1) Due Process Clause :

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the majority opinion on Griswold, written by Justice Douglas, a description was given of constitutionally protected penumbras that exist between and around the peripheries of the explicit rights listed in the Bill of Rights.

Douglas gave examples of these penumbras, citing the First Amendment’s construance as protecting the unmentioned rights of childhood education, the association of people, and the study of foreign languages. The freedom of speech and press, Douglas wrote, citing many relevant cases, includes the right to distribute, receive, and read and the freedom of inquiry and thought and the freedom to teach, and the State may not, Douglas stated, “contract the spectrum of available knowledge.” The freedom to associate and the privacy of one’s associations, also, have been found to be a peripheral First Amendment right, Douglas noted. Douglas quoted NAACP v. Alabama:

“In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of ‘association’ that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members.”

Douglas also cited the “zones of protection” created by Third, Fourth, Fifth and Ninth Amendment guarantees:

“The Third Amendment, in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’

“The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions ‘of the sanctity of a man’s home and the privacies of life.’”

Douglas reasoned that the penumbras of specific guarantees “help give them life and substance,” stating that “[w]ithout those peripheral rights, the specific rights would be less secure.” The court took offense to any imposition of the state in the marital bedroom and concluded:

“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship… Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

“Reversed.”

The opinion went on as a sort of post-script to the conclusion to state the majority’s full opinion about the right of privacy:

“The principles laid down in this opinion… affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into each other.”

In Roe v. Wade (1970-1973) another 7-2 decision found that the U.S. Constitution protected privacy rights including abortion decisions, this time under the Due Process Clause of the Fourteenth Amendment, but balanced against this individual right, the court found, were certain legitimate interests of the state in protecting prenatal life and women’s health.

It should be noted that Roe was companion to a case dealing with abortion in the same way that had made its way to the Supreme Court simultaneously. Doe v. Bolton was also filed by a physician on behalf of his patient against District Attorney of Georgia. The two cases were dealt with together by the Supreme Court.

Norma L. McCorvey (Alias Jane Roe) sought an abortion for what would be her third child. Unable to obtain an abortion, she accepted the help of two attorneys who filed suit on her behalf against the Dallas County D.A. Henry Wade, who represented the state of Texas.  Roe argued for Ninth Amendment protection of privacy:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The district court had accepted Roe’s Ninth Amendment rationale, but the Supreme Court declined to adopt this basis. The court found in Roe’s favor, however,  and, relying on the court opinion in Griswold, decided that a woman’s choice to have an abortion was a private decision between her and her doctor.  The court recognized a basis of protection in the Ninth Amendment, but favored the Fourteenth Amendment Due Process Clause.

Justice Blackmun wrote the majority opinion:

“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution…

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy… .”

As a fundamental right, all laws attempting to restrict abortion were therefore subject to the standard of strict scrutiny.

The court noted two interests of the government in preventing abortion that were found to be compelling–protecting the mother’s health and protecting the “potentiality of human life”–and decided that a mother and her doctor had full authority to decide to abort in the first trimester but the second and third trimesters were more susceptible to government interference based on these compelling interests. The court also added that the primary right being preserved in Roe was the physician’s right to practice medicine freely absent a compelling state interest–not women’s rights in general.

*     *     *     *     *

Griswold and Roe, although found to be protected by the U.S. Constitution, highlight clear areas of lack in the Constitution to protect some expected human rights. In Griswold, although the decision was 7-2 in support of protection of contraception, there were still two justices who did not see any constitutional protection of privacy that might cover contraception, and the concurring opinions varied as to whether they placed the basis of this right in the Ninth or Fourteenth Amendment. The majority opinion, written by Justice Douglas, did not specify its legal basis, offering only the description of penumbras and emanations of interpreted Amendment rights in previous cases.  In Roe‘s 7-2 decision, also, justices disagreed over whether the Ninth or Fourteenth Amendment was the basis of abortion rights and dissenting opinions found no right to privacy anywhere in the Constitution, criticizing the majority opinion’s interpretations. These justices would have upheld the Connecticut statute even if they disagreed with it. Other opponents also criticized Roe as lacking a valid constitutional foundation. Watergate prosecutor Archibald Cox wrote that Roe failed to confront the issue in principled terms and that “[n]either historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.” Yale professor John Hart Ely criticized, “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” and Harvard professor Laurence Tribe stated, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

By Day Blakely Donaldson

Sources:

Justicia
Justicia
L&SJ (American Bill of Rights)

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A trial over a charge for marijuana possession took place in Alaska in 2003, where the defendant argued that he had a constitutional right to possess marijuana despite laws in place–Noy v. State.

David Noy was arrested for smoking marijuana at a barbecue at his North Pole home after police smelled marijuana and investigated. Noy’s home was found to contain several ounces of marijuana as well as 5 immature plants, but no scales or other evidence of commercial conduct. Noy was prosecuted and convicted of marijuana possession under a 1990 statute criminalizing any amount of marijuana.

Noy appealed the decision, and in Noy v. State (2003) Noy’s counsel argued that Noy’s actions were protected by the privacy provision of the Alaskan constitution. The court agreed: according to the state constitution, Alaskan citizens have a right to possess less than four ounces of marijuana in their home for personal use.

The court found that statue AS 11.71.060(a)(1), which made illegal using, displaying, or possessing any amount of marijuana, criminalized conduct that the Alaska Supreme Court had declared protected under article I, section 22 of the Alaska constitution. This finding was based in main upon an amendment to the state constitution made in 1972.

The amendment states, “The right of the people to privacy is recognized and shall not be infringed.   The legislature shall implement this section.” (Article I, section 22).

In Ravin v. State (1975), the constitution was found to protect possession and ingestion of marijuana for personal use in one’s home in a purely personal, non-commercial context. In Ravin, the privacy protection extended to marijuana could only be overturned if the state could show that the intrusion into people’s privacy bore “a close and substantial relationship to a legitimate government interest,” i.e. public health or welfare would suffer without prohibition of private possession of marijuana. The court found that in Ravin such an interest had been demonstrated in the case of drivers, youth, buyers and sellers, and use in public places, but not for adults in general.

In 1982, the Alaskan legislature changed the law dealing with marijuana from Title 17 to Title 11 and dropped the civil fine for possession for personal use in a non-public place, alligning the law with Ravin. In 1990, however, Alaskan voters approved a ballot (citing variously as 51 and 55% majority) that amended AS 11.71 subsections and made possession illegal. Noy was charged under this 1990 law.

To decide Noy, the court sought to answer if the law under which Noy was charged was unconstitutional, in which case it would be void.

Important to the courts decision was the process by which Statute 11.71 was enacted: the ballot. The court sought to answer whether Alaskans can enact legislation by ballot. The court found that Alaskans could, according to Article XII sec. 11 of the Alaska constitution, which reads that through the ballot Alaskans may exercise “the law-making powers assigned to the legislature” (subject to the limitations in Article XI), but, just like legislative action, the initiative process must not violate the constitution. Statute 11.71 did violate the constitution in part, and so, the court found, the statute must be limited to preserve its constitutionality. The statute was to return to its pre-1990 version in order to conform to the constitution.

Therefore, the court found that marijuana possession by adults in their home for personal use (as in Ravin) remained constitutional, entitling Noy to a new trial. The original conviction was reversed and Noy was granted a new trial, wherein he could possibly be re-convicted if he was found to possess more than four ounces of marijuana (the amount not protected by the constitution).

By Day Blakely Donaldson

Sources:

Findlaw

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