Scalia To Women: Corporations Have Rights, Not You

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Just how ridiculously narrow-minded and oppressive will U.S. Supreme Court Justice Antonin Scalia get?  It boggles the mind when you consider his latest rant.

In an interview with the online publication “California Lawyer” this past week, Scalia declared that the 14th Amendment does not protect gays or women from discrimination.

Scalia stated:

Q. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.

If I understand the good Justice, taking into consideration his opinion in the recent Citizens United case, corporations have constitutional rights but women and other minorities are free game for discrimination, at least as far as the 14th Amendment goes.   Do you find it astounding that a jurist sitting on the Nation’s Court of Last Resort thinks that AT&T or Halliburton or BP has more rights than your mom does or your sister?  I do.

We all need to think very seriously about Justice Scalia’s comments.  Think about them in the context of this quote which I am re-printing from an excellent article in U.S. News’ Politics blog:

“…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Related articles

• Justice Scalia’s accidental argument for equal rights (dailykos.com)
• Supreme Court’s Scalia Says Discrimination Is Constitutional (usnews.com)
• Justice Scalia’s Warped Idea of Personhood: Not Women, But Corporations? (crooksandliars.com)

Judge Issues “Don’t Ask, Don’t Tell” Injunction

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Hello everyone –

It has been a little while since I posted new content here at CRW, but I am back.  Thanks to all of you loyal readers and new visitors who discovered the blog during my break.  I hope to keep everyone interested, and in particular, stay tuned because there will be some interesting changes in both content and format here at CRW which I hope to have in place by the first of the year.

In the meantime, let me jump back in with a quick post on a lightning-rod issue:  gays in the military.  On October 12, 2010, defying the Obama Administration‘s desire for a stay, U.S. District Judge Virginia Phillips‘, seated in San Diego, CA, issued a worldwide injunction Tuesday immediately stopping enforcement of the military’s “don’t ask, don’t tell” policy, suspending the 17-year-old ban on openly gay U.S. troops.  Her landmark  ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.

Views about the judge’s decision were predictably divided.  Rather than repeat the principals press comments verbatim here, you can read an excellent article by following this link to Yahoo.

The “Don’t Ask, Don’t Tell” policy was enacted in 1993 under President Clinton, but has been widely disparaged by civil rights advocates.

Quick Stats On “Don’t Ask, Don’t Tell” –

I was just made aware of some interesting statistics regarding the number of servicemembers discharged from the military under the “don’t ask, don’t tell” policy.  According to my information, which is apparently grounded in stats kept by the Servicemembers’ Legal Defense Network, 12,500 servicemembers have been discharged from the U.S. military since the “don’t ask, don’t tell” policy was signed into law.  I encourage you to visit the Servicemembers’ website directly, as I have not independently verified the accuracy of this number.  If it is accurate, that is an outrageously high number for a comparatively recent law.

Related articles

• Judge Orders Injunction on “Don’t Ask, Don’t Tell” (politicalwire.com)
• ‘De facto moratorium’ on DADT discharges, but commanders may not know (cnn.com)

IRS Issues Ruling – California Community Property Recognized For Registered Domestic Partners

As reported in the Continuing Education of the Bar (CEB) Blog, the IRS has just issued an important private letter ruling affecting California registered domestic partners. According to the ruling, California’s registered domestic partners must report half of their community earnings on their federal individual tax returns.

Under the ruling, if two partners have combined income of, say, $100,000 (partner A’s income = $75,000 and partner B’s income = $25,000), each would report $50,000 on his individual federal return. Each partner is entitled to one-half of the tax credits withheld from the partnership’s paychecks.

This ruling is particularly significant for registered partners where one is a high earner and the other is a low earner. Under the ruling, the couple could take advantage of splitting the income, thereby relieving the tax burden on the higher earner. Registered domestic partners in California will be permitted to amend their returns for the period December 31, 2006 to June 1, 2010.

This advantage is just one of the many tax advantages that have always been available to married couples, but before the ruling, it was not available to domestic partners under federal law.

You can also read more about the ruling at the CEB Blog here as well as a San Francisco Chronicle article about the development here.

I have also downloaded the private letter ruling to the Box, entitled IRS Ruling Letter, as well as IRS Legal Memorandum.

FCC’s Working Paper On Equal Internet Access For Disabled Persons Available For Download

Last month, the Federal Communications Commission‘s Office of Strategic Planning and Policy Analysis released a significant ‘working paper’ entitled, “A Giant Leap & A Big Deal:  Delivering On The Promise Of Equal Access To Broadband For People With Disabilities.”  This is an important document which should be read by anyone concerned about the rights of the disabled as well as equal Internet access for all.  I have placed a copy of the working paper in the Box which can be downloaded.  Look for “BroadbandDisabilitiesFCCDoc.”

The working paper contains some important statistics on the sheer number of Americans living with some form of disability.  Consider:

• 54 million Americans have a disability;
• Of those 54 million, 35 million are severely disabled;
• 7.8 million people over the age of 15 have difficulty reading ordinary newsprint;
• Another 7.8 million people have difficulty hearing an ordinary conversation;
• 2.5 million encounter difficulty in having their speech understood by others;
• 27.4 have lower body limitations;
• 19 million have upper body limitations; and
• 16.1 million have cognitive, mental and emotional functioning disabilities

In addition, the working paper also contains some sobering statistics that drive home the importance of equal broadband access for everyone.  For example:

• It took over 100 years for telephone systems to become “accessible” to people with hearing or speech limitations;
• It took 50 years for television to become “accessible” to people with hearing limitations;
• It has taken 10 years for people who use hearing aids to have reasonable access to wireless telephones; and
• People with vision disabilities still do not have access to all emergency information on video programming or audio access to text
  messages on the vast majority of cell phones

Undoubtedly, the contents and proposals contained in this working paper will be discussed widely across the Internet in the months to come.  If you are concerned about a free and equally accessible Internet, as am I, I strongly encourage you to download your copy of this working paper from the Box and learn about the FCC’s historic work in this area.

House Vote Paves Way For Gays In The Military; Fight Isn’t Over Yet

On Friday, the House of Representatives passed a defense bill signaling the beginning of the end to the military’s “Don’t Ask, Don’t Tell” policy banning openly-gay personnel from serving in the military.

The defense bill passed by a vote of 229-186 vote, a smaller margin than is typical.  Many Republicans and a few Democrats voted against it solely because of its inclusion of the gays in the military provision.

House approval of the “Don’t ask, Don’t tell” repeal was a victory for President Obama, who has pledged to change the policy, and for gay-rights groups, which have made it their top priority this year. The bill would give the Pentagon the rest of the year to study the issue before the repeal would take effect.

The Senate is expected to take up the defense bill this summer. Supporters of an end to the “Don’t Ask, Don’t Tell” policy are likely to need the votes of 60 of the 100 senators to prevent opponents from blocking it.

Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee and a chief backer of changing the law, said at a news conference Friday most senators support ending the gay ban.

“I believe a majority of the Senate, just like a majority of the country … favor changing this policy,” he said. “It is a discriminatory policy.”

By ending its ban on allowing openly-gay service members, the United States would actually be joining a long list of many of our allies that already allow such service.  I have placed a PDF of a study conducted by the University of Santa Barbara’s Palm Center for Sound Public Policy in the Box which shows the countries allowing openly-gay service members.  This list is current as of June 2009, and is entitled CountriesWithoutBan.

You can also read more about the house vote here.

Civil Rights History: On This Day, Harvey Milk’s Killer Avoids Murder Charge Using “Twinkie Defense”

For the lesbian and gay communities, particularly in the San Francisco Bay Area, today marks a day in civil rights history which sparked great protests known as the “White Night Riots.” On May 21, 1979, former San Francisco City Supervisor Dan White was convicted of manslaughter for the premeditated murders of San Francisco Supervisor Harvey Milk and Mayor George Moscone.

In 1977, Harvey Milk, a prominent, gay businessman in the Castro District of San Francisco, won election to the city’s Board of Supervisors.  Milk’s election was the first time an openly-gay candidate won an office in the State of California.  Milk is pictured below in a photo taken in 1978 and courtesy of Wikipedia.

Alongside Milk served Dan White.  White was a conservative veteran and former fireman.  The relationship between the two officials was, at best, stormy.  The relationship began to sour further when White voted against a gay-rights ordinance sponsored by Milk.  The gay-rights ordinance did pass, however, despite White’s vote.

In November 1978, White resigned from the S.F. Board of Supervisors, claiming that he could not support his family on his salary.  George Moscone, the Mayor of San Francisco at the time, told White that he would reappoint him to the Board if White chose to come back.  Mayor Moscone is pictured below courtesy of Google Images.

Shortly after resigning, White did change his mind.  However, for reasons that are not entirely clear, Moscone did not reappoint White.  One argument that is proposed is that Moscone was under pressure from Milk not to reappoint White because of White’s no vote on Milk’s gay-rights ordinance.

On November 27, 1978, the day after Moscone’s refusal to reappoint him, White armed himself with a loaded pistol and went to City Hall.  He gained access to the building by entering a window in order to avoid a weapons check.  White then walked into Moscone’s office and shot the Mayor four times.  He then walked down the hall to Milk’s office, shooting Milk five times.  One gun shot was point-blank to the head and is depicted graphically in the 2008 movie, “Milk,” starring Sean Penn.

At White’s subsequent criminal trial, the defense argued that White had diminished capacity and, thus, could not have premeditated the killings.  The evidence offered for White’s depression was that he had been eating excessive amounts of junk food.  Seizing on this evidence, the media dubbed White’s defense, the “Twinkie defense.”  As a result of this defense, White escaped a murder conviction and was, instead, convicted of manslaughter.  He was sentenced to a mere five years, serving only two of them before returning to San Francisco and committing suicide.  White has been referred to as the “most hated man in San Francisco history.”

In 1982, under Proposition 8, and as a result of the negative publicity surrounding White’s case and others, the “diminished capacity” defense was abolished in the State of California.

Wikipedia has excellent articles about Harvey Milk, George Moscone, Dan White, and the “Twinkie defense.” If you are interested in this topic, I encourage you to check out those articles as a next step.  If you have not yet seen the movie “Milk,” then I most strongly encourage you to see it.  Sean Penn‘s portrayal of Harvey Milk, as well as Josh Brolin’s portrayal of the troubled Dan White, is a must see.  A word of warning, however – I personally found the end scene, the assassination of Milk quite haunting even though, from a graphics viewpoint, the scene is definitely not your typical Hollywood scene.  It is, in some ways, all the more powerful and disturbing because of that fact.

R.I.P. Harvey (May 22, 1930 – November 27, 1978).  We have not forgotten, and never will.

Mentally Ill Jailed More Often Than Hospitalized

As some of you may know, May is Mental Health Month.  If you are interested in mental health issues, you may want to check out this excellent resource, Mental Health America.  I will be adding them to the “Resources for Disabled Persons” page as well.  What I did not know until I reviewed the Mental Health America website is that May has been Mental Health Month since 1949.

I find that fact astonishing considering that bias (or, at best, discomfort with) mental health issues forced Missouri Senator Thomas Eagleton from the 1972 Democratic Presidential ticket alongside, George McGovern.  The fact that May has been Mental Health Month since 1949 also calls into question a shocking report from USA Today, released earlier this month.  You can link to the USA Today article here.

According to the article, a seriously mentally ill person in the USA is three times more likely to be incarcerated than hospitalized.  Furthermore, in no state was a seriously mentally ill person — someone with schizophrenia or bipolar disorder, for example — less likely to be incarcerated than hospitalized.  States that stood out at opposite ends of the spectrum, however, were North Dakota and Nevada.  In North Dakota, a mentally ill person was, at least, equally likely to be hospitalized as incarcerated.  In Nevada, however, a mentally ill person was 10 times more likely to be incarcerated than hospitalized.

Before any readers jump to the conclusion that this article is just one more piece of liberal dribble – these statistics were based on a report prepared by the National Sheriff’s Association, hardly a bastion of wild liberalism, and the Treatment Advocacy Center.  Kudos to the Sheriff’s Association for participating in this study.  In my opinion, it is incredibly important to see law enforcement taking a leading role in getting this kind of information out to the public because, unfortunately, law enforcement in many areas often lacks adequate training to appropriately deal with the mentally ill.  As a result, these citizens’ frequently find themselves abused, mis-used, wrongly incarcerated, and their conditions severely exacerbated.

My personal thanks to National Alliance on Mental Illness for circulating the USA Today article on LinkedIn.  For more information on the subject of mental health generally, please check out the website at National Institute of Mental Health.

Senators Pryor, Kerry Propose Equal Internet Access For Disabled

On May 5, 2010, Senators Mark Pryor (AR) and John Kerry (MA) introduced the “Equal Access to 21st Century Communications Act” (S. 3304).  Senators Byron Dorgan and Kent Conrad, both from North Dakota, also co-sponsored the bill.

Hailed by equal access advocates as a major step forward for people with disabilities in ensuring accessible technology, the bill would modernize accessibility mandates in the Communications Act, bringing existing requirements up to date as television and phone services connect via the Internet and use new digital and broadband technologies.

Eric Bridges, Director of Advocacy & Government Affairs at the American Council of the Blind (ACB) said, “Much of S. 3304 would lead to greater accessibility for people with disabilities, such as more accessible video programming, including captioning and video description, regardless of distribution mode; and video programming equipment, such as televisions and other display devices, would also be accessible.”

However, some advocates have argued the Senate bill does not go as far as its companion measure in the House of Representatives – the “Twenty-first Century Communications and Video Accessibility Act” (H.R. 3101) – in reaching all the new technologies.  In particular, the National Association of the Deaf has been critical that the Senate bill is not as broad or well-defined as the House version.

Jenifer Simpson, Senior Director of Government Affairs at the American Association of People With Disabilities (AAPD) said, “We are confident that these issues – scope of accessible communications and the standard for compliance – will be resolved.”

A copy of a press released just issued by COAT – the Coalition of Organizations for Accessible Technology – is in the Box.  COAT has been active in getting the Senate bill introduced.

SCOTUS Rules No Life Without Parole For Juveniles Who Haven’t Killed

In a 5-4 decision, splitting along liberal-conservative lines, the U.S. Supreme Court ruled today that juveniles cannot be incarcerated for life without parole if they were not convicted of homicide.

The case involved Terrance Graham, implicated in armed robberies when he was 16 and 17, and now serving a life sentence in Florida.  Florida which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

Writing for the majority, Justice Kennedy wrote that “the Eight Amendment does not permit” the states to deny a juvenile “any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law.”

Approximately three dozen states allow for the incarceration of juveniles for life without parole based on non-homicide crimes.  Over 100 prison inmates in the United States are serving those terms in Florida and seven other states — California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina.

Justices Roberts, Thomas, Scalia, and Alito dissented from the Court’s ruling.

Court Upholds Adam Walsh Child Protection and Safety Act:

In another criminal procedure ruling, the Court upheld the Adam Walsh Child Protection and Safety Act, signed by President George W. Bush in 2006.  The law permits states to set up civil commitment procedures for “sexually dangerous” prison inmates, allowing for the indefinite incarceration of such inmates long after they have served their sentences.

In a 7-2 decision authored by Justice Breyer, the Court wrote that the law is:

“[A] ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

Under the federal law, in order to detain such inmates, the state must prove the following:

1. The individual has previously “engaged or attempted to engage in sexually violent conduct or child molestation”;
2. He/She currently “suffers from a serious mental illness, abnormality, or disorder”;
3. The prisoner “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

“If the Government proves its claims by ‘clear and convincing evidence,’ the court will order the prisoner’s continued commitment,” Breyer said.  “Clear and convincing evidence” is the highest standard of proof required in a civil proceeding, but is not as high a standard as the “beyond a reasonable doubt” standard applicable in criminal cases.

Justice Thomas and Scalia dissented, writing that nothing in the Constitution gave Congress the power to enact such sweeping legislation.

You can read more about these decisions here and here.

Civil Rights History: On This Day

Starting this month, I will be writing a feature article entitled, “Civil Rights History:  On This Day.”  These articles will explore important civil rights events from the past, but which continue to inform and influence civil rights discussions to the present day.

To start off the feature, we look back to April 4, 1968.  On this day in history, civil rights leader Martin Luther King, Jr. was shot and killed at a Memphis, TN hotel. King had traveled to Memphis to participate in protests involving the rights of Black sanitation workers. Following his “I Have A Dream Speech,” which occurred in 1963, King’s civil rights work increasingly focused on class and poverty issues, rather than strictly on race.

Petty crook James Earl Ray initially pleaded guilty to King’s slaying, but then later recanted.  Ray claimed that he had been set up.  Nevertheless, despite his recant, Ray’s conviction was upheld numerous times, and he died in prison.

Following King’s assassination, widespread violence broke out across the U.S., engulfing nearly 100 cities.  Members of the King family, as well as many others, maintain the belief that King was the victim of a government assassination plot.  Whether government plots against King included assassination is unclear.  However, what is clear is that the FBI waged a fierce campaign against King and his civil rights activities, branding King a communist and attacking his family relationships.  An excellent discussion of these efforts by the FBI can be found at History.net.

Today, as he did when he delivered the “I Have A Dream” speech, King typifies the noble goal of racial equality in the United States.  Is it a goal still unmet?  How would King assess the state of race relations if he were alive today?  On the one hand, we are led by the first African-American President in our nation’s history, Barack Obama.  As a result, one might argue that the United States looks scarcely like the United States of the turbulent 1960s era.  Yet, income and educational disparities between the races – particularly African-American and whites – remain a significant problem.  And, as we have seen in recent months, growing political divisiveness in our country, which I frankly believe is unmatched by anything since the 1960s civil rights movement.

What do you think King would have to say?