Thursday, December 13, 2012

Sexual Orientation Questions on College Application Questionnaires

In a move that many may find controversial, the University of Iowa is beginning to ask students about their sexual orientation and gender identity; the University of Iowa is the first public U.S. university to begin asking such questions.  At least one private university, Elmhurst College in Illinois, has previously asked such questions of their students.

“The university's decision places it in the middle of a debate in higher education over whether to put such questions to students in a bid to become more inclusive, or to avoid doing so because it could be too intrusive.” The University’s goals in obtaining such data is to: 1) provide better services to gay, lesbian, bisexual and transgender students; 2) track retention of these students; and, 3) gauge interest in support services offered by the University.  In order to respect students’ privacy, the questions related to sexual orientation and gender identity are optional on the University’s application questionnaire. 

Campus Pride, a gay and lesbian advocacy organization, has previously attempted to (and continues to push for) questions such as those put forth by the University of Iowa to be included in other university’s application questionnaires.  Campus Pride sees such questions sees such questions being needed to meet the growing need of support services to actively involve gay, lesbian, bisexual and transgender students.

Had the University of Iowa implemented these questions in furtherance of a policy of exclusion or other type of discrimination, then said questions most certainly should be disallowed.  Had the University of Iowa required that prospective students answer these questions to be considered for admittance, then any outcry over the inclusion of the relevant questions would also be justified.  However, the University of Iowa is asking these questions on a purely voluntary basis (respecting privacy and allowing potential students a choice in answering said questions) and will purportedly be used for the benefit of gay, lesbian, bisexual and transgender students.  As long as answering these questions remains voluntary, and results are used solely for the basis of tailoring programs and services that benefit students, it is hard to see an issue with what the University of Iowa is doing.  With the continued push of Campus Pride, perhaps the University of Iowa will be the first of many public universities to use such questions to attempt to meet the needs of the growing population of gay, lesbian, bisexual and transgender students.

You can read more on this story from Reuters.

Thursday, November 29, 2012

University Guidelines Clash with Marijuana Legalization in Colorado and Washington

In this past November election, two states, Colorado and Washington, passed measures that legalize the possession of up to one ounce of marijuana by any person over the age of twenty-one. Prior to the law taking effect, the states are attempting to create rules for the distribution of marijuana. Once the law does go into effect, these two states are expected to take in “tens or hundreds of millions of dollars a year, financial analysts say”, based on taxes and licensing regulations.

However, even without these regulations, it is already certain that college students in these states will not be able to benefit from the law many of them supported and helped pass. Even with the state laws in place, colleges and universities will continue to enforce their policies banning the use of drugs deemed illegal under federal law; in fact, many universities rely on federal funding they receive for complying with this policy. Dormitory contracts also tend to include provisions banning the use of illegal (under federal law) substances. Finally, college athletes will still have to comply with NCAA regulations. Among these regulations is the prohibition of the use of any substance deemed illegal under federal law.

Washington dealt with a similar issue in 1998 when the state approved the use of marijuana for medicinal purposes. Although the use of the marijuana, even for medicinal purposes, was banned on campus, Washington State “waived its requirement that all freshmen had to live in dorms to accommodate them”. Although these two states have legalized the (limited) use of marijuana, college students must still ensure they are aware of their campus’ policies or potentially face punishment and the possibility of expulsion. The interaction of the state law with the obligations of the universities based on federal funding creates uncertainty and confusion in what can and cannot be done, and where and where it cannot be done.

As Washington and Colorado are the first two states to deal with such issues, it is certain that even more issues and confusion will have to be dealt with and information will need to be communicated to the states’ citizens to ensure proper compliance and enforcement.

More information can be found at the Dayton Daily News Website.

Thursday, October 11, 2012

Affirmative Action in School Admissions Challenged

In 2003, the United States Supreme Court ruled, in a 5-4 vote, that “universities could consider an applicant's race alongside a host of other factors to improve diversity.”  Yesterday, the Court heard challenges to the administration of affirmative action as applied by the University of Texas. 

Abigail Fisher, a white student, sued the University of Texas in 2008.  She claimed that, although she had more qualified credentials, she was denied admission in favor of racial minorities. In bringing her lawsuit, she claimed that she was denied equal protection as guaranteed under the United States Constitution. On the other side, the University of Texas is arguing that affirmative action programs in admissions are still required in order to ensure underrepresented minorities are sufficiently represented at their school.

The conservative judges questioned the school’s attorneys regarding the goals of affirmative action, whether a time would come when affirmative action in admissions was no longer necessary and how universities would know when this time had come without court intervention.  The more liberal judges seemed to side with the fact that there was no need to overturn their prior rulings on this matter.

It is unsure exactly how the vote will lie; as such, it is unsure how strong a ruling against the use of affirmative action in admissions would be should that be the decision of the majority. The current feeling is that enough judges are disenchanted with the University of Texas’use of affirmative action, but not disenchanted enough with affirmative action as a whole to make sweeping changes outside the University of Texas at the moment. 

Thursday, September 27, 2012

Constitutional Challenges to DOMA

In the past several years, six states have legalized gay marriage within their jurisdiction.  However, the Defense Against Marriage Act (DOMA), a federal law, is preventing many of these same sex couples from benefitting from the rights of these state passed laws.  The Second U.S. Circuit Court of Appeals however is ready to hear arguments that portions of DOMA are unconstitutional and discriminate against gay couples.

This case was brought by Edith Windsor who married her partner in Toronto, Canada in 2007.  Shortly thereafter, Ms. Windsor’s partner died leaving her entire estate to Ms. Windsor.  As federal law did not recognize their marriage as valid, Ms. Windsor was assessed with estate taxes of $363,000.

However, Ms. Windsor’s attorneys state that this federal law is unconstitutional as it violates the 14th Amendment, which guarantees equal protection under the law.  Previously in June, a federal district court agreed with Ms. Windsor’s attorneys and found a central provision of DOMA to be unconstitutional.  President Obama’s administration has also stated that they believe DOMA to be unconstitutional would no longer defend the law.  However, “a group appointed by the Republican majority in the U.S. House of Representatives is defending the law in courts across the country.”  The Court of Appeals has expedited review of this case due to Ms. Windsor’s health; Ms. Windsor has also asked the United States Supreme Court to review the case before the Court of Appeals hears it.

Previously, only one other federal appeals court has ruled on the issue; the First Circuit Court in Boston found in May that “found a central provision of the Defense of Marriage Act unconstitutional for denying federal benefits to same-sex couples married in states where such unions are legal.” In California and Connecticut, federal district courts have also ruled against the law.  Four other cases are currently pending before the Supreme Court of the United States; “[t]he Justice Department has filed petitions in all four cases, asking the high court to review the constitutionality of the law's definition of marriage.”

It is understood that where state and federal law both speak to the same issue, federal law preempts the state law.  However, in this case at least three courts have held provisions of DOMA to be unconstitutional and the current administration has no interest in defending the law.  Six states have battled to legalize same sex marriage in their jurisdictions; these battles will be for nothing if DOMA is allowed to preempt state provisions.  Until the Supreme Court hears one of the cases on this issue, and as such rules on the constitutionality of DOMA, same sex couples will never be sure as to what their state given rights really guarantee them.

More information on this case can be found in this article.

Thursday, August 30, 2012

California Bans Sexual Orientation Therapy for Minors

On Tuesday, California became the first state to pass legislation intended to ban reparative therapy intended to change sexual orientation in minors.The Bill passed the California State Assembly by a vote of 51-21.

One of the purposes of this Bill is to educate parents and adults that many of these therapies actually do more harm than good to the minors whose behavior they are attempting to alter.  While attempting to protect minors from these harmful practices, it is also necessary to educate adults so that they (hopefully) discontinue attempts to “curing” minors from their homosexual tendencies.  Many of these therapies cause detrimental effects to the patient’s physical and mental health, which then often leads to substance abuse and/or suicide.

Supporters of the Bill state that homosexuality is not a disease that can be cured through therapy, and as such minors should not be subjected to such treatment.  Furthermore, to allow such therapy, the patient must give informed consent before commencing such treatment; however, it has been stated that minors cannot give informed consent, and therefore cannot be subjected to this therapy no matter their parents’ or guardians’ wishes.

Hopefully, other states will follow the lead of California in this area.  Homosexuality is not a disease, no matter what others may contend.  Homosexuality was removed from the DSM (Diagnostic and Statistical Manual of Mental Disorders) in 1973.  This diagnosis was then replaced with a condition termed ego-dystonic homosexuality; however, under great pressure this was removed from the DSM in 1986, with only remnants of the condition being described in the section titled Sexual Disorders Not Otherwise Specified. (This article provides more information about mental health and homosexuality.) Even though homosexuality was at one time deemed a disease, it is no longer and, as such, nobody should be forced against their will to be treated.

With the passage of laws such as these, hopefully others will become aware of the negatives associated with such therapies, and no longer use such treatments whether they are allowed by law or not.  By forcing minors into such treatment, there is a chance the minors can be faced with serious harm to their physical and mental well-being.  Parents wishing to “cure” their children may end up unknowingly pushing them towards substance abuse or suicide.  With proper education and awareness, hopefully parents would choose the health of their child over their disapproval of their child’s sexual preferences.  Fortunately, for those parents that would still chose potentially harmful therapies, laws such as the one passed in California will protect the safety of the minors.

You can find the text of Bill 1172 here.

Thursday, August 2, 2012

Chicken Sandwiches and Morality

According to recent news, it is now apparent that one’s choice in fast food restaurants is a declaration of one’s political, moral and/or religious views.  As has been widely covered in the news lately, Chick-fil-a has made a public stance against same sex marriage, basing their view on their interpretation of the Bible.  One should not be shocked that Chick-fil-a is expressing a viewpoint based on religious viewpoints, as Chick-fil-a has never hidden the fact that the company believed in and observed Christian teachings.  What is more surprising is that this fast food chain has recently been declared as the line for whether or not one supports same sex rights.

Yesterday in furtherance of this opinion, many Chick-fil-a’s were packed with a large contingent of “conservative Christians” in celebration of Chick-fil-a appreciation day.  Those that chose to patronize the restaurant yesterday were met with full parking lots and longer than usual waits for food.  The outpouring was said by many to be sign of support for Chick-fil-a’s values and stance against gay marriage.  Some were quoted as saying that they were merely supporting Chick-fil-a’s right to freedom of speech.

Still, many are now boycotting Chick-fil-a based entirely on their stance on same sex marriage.  Some restaurants are beginning to sell “Chick-fil-a alternatives” and there is a kiss-in planned for tomorrow at Chick-fil-a’s in many states.  One blogger has gone as far as reverse-engineering the Chick-fil-a sandwich in order to allow people to “get [their] fried chicken sandwich fix and keep [their] moral principles intact.”

In the end, Chick-fil-a is a fast food restaurant that many visit for their chicken sandwiches.  They are a privately owned business that has the same right to freedom of speech as the individuals who are complaining about the restaurant’s religious viewpoint.  Chick-fil-a’s religious beliefs have never been questioned as seriously as this, nor has any other fast food restaurant’s beliefs been questioned to this extent (at least to this author’s understanding).  

It is understandable that same sex marriage is a hot topic, especially in this day and age (and as such has been written about here on a number of occasions).  But, doing a simple Google news search for “Chick-fil-a” results in a surprising number of news items.  After all, this is a fast food restaurant, not a politician, court or religious entity.  To this author’s knowledge, one does not go to Chick-fil-a for a chicken sandwich and side of religious/moral teaching.  Many businesses in many industries surely have viewpoints that conflict with those of their customers; would these customers be so willing to boycott those businesses should they express their opinion?  The real issue here is not that Chick-fil-a has a conflicting opinion; it is that they had the conviction to express that viewpoint as was their right under the First Amendment.  Individuals certainly have the right to choose which businesses they patronize based on any criteria they see fit, but to place such high standards upon and affect the business of a simple fast food restaurant in such ways seems to be an overreaction.

Thursday, June 28, 2012

Supreme Court Upholds "Obamacare"

Earlier today, the United States Supreme Court upheld the majority of the provisions contained in President Obama’s healthcare legislation.  Twenty-six states had challenged this legislation that would require citizens to purchase health insurance that met government mandated minimum standards; those who do not purchase said insurance will be fined.   Many have termed this case “the most significant before the court since at least the 2000 Bush v. Gore ruling”.   

Relying on Congress’ power to levy taxes, the Court voted 5-4 to uphold this provision.  The primary restriction that this ruling placed on the health care legislation related to the expansion of Medicaid by states; with the ruling, states will be given the flexibility to expand their Medicaid programs less than originally legislated without fear of being fined.

Republicans have vowed to continue fighting this legislation.  Presumptive Republican candidate for President, Mitt Romney, has stated he will reverse this legislation if he is elected.  While the goal of the legislation was to resolve the issue of the large number of uninsured citizens many are claiming that this legislation now opens the door for the government to require its citizens to purchase anything the government feels is a necessity, “with broccoli becoming the central example in court arguments.”

One of the major issues with this legislation is that many are not please that the government is requiring them to make a purchase that used to be their personal decision.   Most citizens are now required to purchase insurance whether they wish to or not, and whether they have the means to afford it or not.  The legislation does provide support for “poor and nearly poor households”, but there are others out there who do not qualify for this support that still may have issues affording this government mandated insurance.

The other main concern is determining where the government’s powers end with this type of legislation.  Surely the government cannot require its citizens to buy broccoli, but there are certainly other items the government may deem necessary for citizens’ well-being that are unnecessary and/or unaffordable to some.  Should the government try to expand these powers into other areas, the Supreme Court will be required to create clearer guidelines on what the government can and cannot require its citizens to purchase.

More information can be found in this article from the New York Times.


Thursday, May 17, 2012

House Reduces Protections Under the Violence Against Women Act

On September 13, 1994, then-President Bill Clinton signed into law the Violence Against Women Act (Title IV, §§40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994; Public Law 103-322). The aim of the Act was to fund investigations and prosecutions of violent crimes against women, to impose automatic and mandatory restitution on those convicted, and allow civil redress in cases prosecutors chose to leave unprosecuted.  The Act also provided “anonymity to victims of domestic abuse who are applying for residency visas so that their applications cannot be sabotaged by their alleged abusers.” Also, to encourage cooperation with law enforcement officials, witnesses are provided with an opportunity to apply for special residency, and eventually permanent residence.  The Act has already been renewed twice, with bipartisan support.

However, the last Bill authorizing the continuation of the Act expired in 2011. The Senate has approved a Bill expanded protections for lesbians, immigrants and Native Americans and passed with bipartisan support with a vote of 68-31.  However, on Wednesday the House of Representatives passed their version of the Bill, stripping away the protections for immigrants who are subjected to such violence or who witness such acts of violence.  Some feel the House Bill will discourage immigrant women from reporting abuse for fear of being deported.  At the same time, the House Bill also makes it more difficult for Native American women to seek justice against their abusers; the House version also provides no protection for the LGBT community.

As for the elimination of protections for immigrant women, it is argued that this may be the only way to prevent fraud and abuse of the system by women seeking citizenship in the United States.  However, it is countered that all visa applications from immigrant victims already go through extensive review and require extensive documentation.  

With such limitations put in place by the House of Representatives, the Violence Against Women Act will cease to protect women from abuse as the original Act intended.  The House ignores the needs of immigrant women, Native Americans and the LGBT community, classes of women that need at least the same protection as all other female citizens.  And the justification of preventing fraud by immigrant women seems unfounded; this Act has already been renewed twice without previous Congresses feeling the need to add such limitations, and safeguards are already in place in the visa process to reduce the risk of fraud.  It is believed that the House version of this Bill will be vetoed without removing the restrictions, restoring the Act to its original intentions.  Whether through veto or other manner, hopefully the House and Senate can reach agreement on renewing the Act in a way that will ensure protection for all.

Further information can be found at these articles from the Huffington Post and Los Angeles Times

Thursday, May 10, 2012

President Obama Supports Gay Marriage

In the wake of North Carolina’s vote on a constitutional amendment banning same sex marriage in the state, some positive news arose for same sex couples and gay right activists on Wednesday. Previously, Vice President Joe Biden had expressed his opinion that same sex couples should be allowed to marry, and yesterday President Barack Obama (finally) expressed his support of same sex marriage.

The President stated that “he had weighed the teachings of his Christian faith against a growing pro-marriage consensus among younger Americans — a key target group for his reelection campaign.” Administration officials also stated that Obama planned to make his express support of gay marriage known prior to the Democratic National Convention, but the announcement was moved up due to Vice President Biden’s Sunday comments on “Meet the Press”.

President Obama had previously stated that his views on same sex marriage were “evolving”, and many had believed that he was a supporter of same sex marriage. The President has previously shown he was pro-gay with action such as repealing “don’t ask, don’t tell”; however, the President also has come under criticism from gay rights activists when he stated he did not plan to sign legislation that would ban discrimination by federal contractors based on sexual orientation or gender identity. Until yesterday, the failure of the President to express his viewpoint on the topic was beginning to create tension amongst gay right activists.

Some view this statement as a possible election strategy: hoping that an express support of gay marriage will bring in the votes to ensure the President’s re-election. However, there are many that say this statement may actually chase away supporters, and believe that, due to this possible alienation of voters, this statement must be the President’s true opinion.

The Washington Post, along with this article on the President’s statement, has this article discussing the divide in the community this statement has made. Some who supported the President during his first election and were proud to support an African American President now say that they “don’t believe in skin color more than [they] believe in God’s word.” Some believe that the statement will not outweigh his other acts as President, and some believe that the President may change his mind on the subject before the election. And some people believe that, no matter the motivation behind the statement, this was the right thing to do.

No matter the motivation, this will most certainly open voters’ eyes and give them something additional to consider when casting their ballots in November. Until then, it is impossible to know the full effect of the President’s statement. And even then, it will be impossible to tell whether this statement was a deciding factor in how people voted, or if it is merely one additional action that people feel added to the President’s accomplishments or was just another negative aspect of his Presidency.

No matter the outcome of this November’s election, it is my opinion that it is definitely a positive to finally have somebody in such an authority position take a stand in support of gay rights; while this may not affect how I vote in November, it gives me hope that the country and its politicians may finally be open to taking measures to protect gay rights.

Thursday, April 12, 2012

Employment Discrimination and Gay Rights

With the recent victories in a variety of states regarding same sex marriage, and the apparent support of the current administration, the push towards more expansive rights for homosexuals seemed promising. While much work remains to be done in establishing equal rights and protects for homosexuals, the necessary support for progress seemed in place. However, the New York Times yesterday published an article stating that President Obama has decided not to sign an Executive Order protecting homosexuals from discrimination by employers with federal contracts.

“Current law does not protect against discrimination based on sexual orientation or gender identity, and legislation to do so, which Mr. Obama endorses, lacks sufficient votes in Congress.” Previously, President Obama has issued Executive Orders regarding several issues which he asserted that “we can’t wait” for passage by the Republican-dominated Congress. Supporters of gay rights assert that gay, bisexual and transgender people, to whom such an Executive Order would apply, have a right to be protected from employment discrimination based on their sexual orientation and believe that the “we can’t wait” for Congress to ensure protection of this right. Instead, the article reports that an administration official has stated that, “We support legislation that has been introduced and we will continue to work with Congressional sponsors to build support for it.”

President Obama has not yet publicly endorsed same sex marriage, but he has been a proponent of initiatives such as repealing the military’s “Don’t Ask, Don’t Tell” policy. The President also continues to advocate for “an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity.” However, it is unlikely that the current Republican-led Congress will pass any such Bills which would add gender identification or sexual orientation to the list of classes protected from employment discrimination. It surely seems that this is exactly the type of policy that falls under President Obama’s “we can’t wait” drive, and yet the President is taking the wait-and-see approach.

Admittedly there may be many other legitimate reasons for not issuing the Executive Order at this time. All that is certain is that gay, bisexual and transgendered people should not be subject to employment discrimination based on their gender identity or sexual orientation and it is unlikely that such protections will be afforded to these groups as promptly as they should be.

Thursday, March 29, 2012

The Supreme Court Considers "Obamacare"

The big news this past week has been the Supreme Court’s three day hearing on the constitutionality of President Obama’s health care bill (“Obamacare”). While the final ruling on this matter is not expected until later this summer, many are already predicting what the Court will do and how this will affect medical care for U.S. citizens.

It is thought that the more conservative judges, those on the right, are ready to rule the program unconstitutional and void the entire law. However, some hope that between now and the ruling Justices will come more “center” and approach the law in a more moderate sense.

Solicitor General Donald B. Verrilli Jr. has already pleaded with the Justices to exercise judicial restraint, aiming his plea at Justice Kennedy, who many expect to be a key vote, perhaps siding more with his liberal colleagues even though he is often grouped with the conservative Justices. According to Verilli, “The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment.” He feels it is not the place of the Supreme Court to overturn this decision, but instead it is the duty of the voters to change the plan if in fact they feel it needs changing. He has asked the Court not to become a part of this partisan battle.

Verilli’s plea is interesting, as it appears he is asking the Court to refrain acting in a manner which is inherent in their existence: to ensure that the government does not violate the constitutional rights of its citizens. It is the duty of the United States Supreme Court to hear challenges on the constitutionality of laws and determine whether they are proper or not. To ask the Court then to shirk this duty is to negate the system of checks and balances instituted to protect U.S. citizens. It does not matter how long the government has wrestled with the issue; if the law violates constitutional rights, then it should be struck down.

Verilli is correct in that this should not be a partisan issue for the Court. It is their responsibility to analyze the law and rule on its constitutionality without regard to whether it was Democrats or Republicans who instituted it. The Court needs to analyze the law and decide only one issue: is this health care law constitutional?

We all have our opinions on whether Obamacare is right or wrong for the country. This is not an expression of either my support or opposition to the law; this is merely an expression of my belief that the Supreme Court’s duty is to protect citizens from having their constitutional rights infringed upon. It is Congress’ duty to create laws that pass constitutional muster (no matter the subject matter) and the Supreme Court’s duty to keep Congress in check. This is the basis of the United States government; it has been the basis for hundreds of years and it should not change now.

For more information, click here.

Thursday, March 15, 2012

Pennsyvania Voter ID Law

With the 2012 election season in full swing, it seems only proper that new voter issues arise to potentially complicate the voting process. On that note, Pennsylvania enacted a new law Wednesday requiring all voters to show identification at the polls prior to voting. This is by far not a unique requirement, but it is a reminder of what types of issues such legislation can bring.

The intent of this legislation, as put forth by Pennsylvania governor Tom Corbett, is to protect the principle of “one person, one vote.” Pennsylvania, and other states before them, believes that voter identification requirements are needed to guard against voter fraud. “Supporters say the laws are no different from needing identification to board an airplane or obtain a library card.”

However those opposing laws such as these claim that voter identification laws serve only to prevent access to the polls, especially to the poor and minorities. Advocates against this legislation claim that requiring voter identification discriminates against those who cannot afford such identification nor have no access to locations where such identification can be obtained. “Democrats say voter identification measures are aimed at squeezing out university students and senior citizens who tend to vote for Democrats.”

In response to those opposed, Governor Corbett offers the statistic that he claims ninety-nine per cent (99%) of Pennsylvania citizens already have valid identification. He also offers that the Department of Transportation driver license centers would provide free identifications for those who cannot afford to purchase one themselves.

As said, this is by far a new issue. States have been dealing with this issue for several years, and the arguments against such legislation have changed very little. The issue of protecting against voter fraud is an important matter. The principle of “one person, one vote” is what our election system runs on, and any violation of that principle needs to be prevented. Requiring voter identification at the polls is certainly one way to protect against any such violation.

However, the question becomes whether the interest in protecting against voter fraud outweighs the potential that some voters may not be able to exercise their right to vote, another essential principle of our electoral system. Even in cases such as Pennsylvania, where they are offering to provide free identification to those who cannot afford one, many argue that this legislation places a greater and unnecessary burden on people requiring them to travel to license centers that may be in inconvenient locations or open at inconvenient times.

Perhaps the solution is to require identifications at polling places, but also allow some other type of identification system for those who do not have the required identification. While it is unlikely the state would want poll workers asking voters for their social security numbers, a system could be put in place where they only have to verify the last four digits of their social security, their birthday, address and telephone number. While no system is fool proof, at least a system such as this would add some level of protection against voter fraud.

For more on this story, click here.

Thursday, March 1, 2012

Judge Strikes Down Cigarette Labeling Requirements

On Wednesday, U.S. District Court Judge Richard Leon ruled that new regulations regarding labeling on cigarettes were unconstitutional. According to these new regulations, originally scheduled to be implemented this year but delayed due to a preliminary injunction issued in 2011, cigarette labels were to have “images of rotting teeth, diseased lungs and other images intended to illustrate the dangers of smoking.”

According to the judge, “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech." While Judge Leon agreed that educating consumers on the dangers of a product was a compelling interest, he ruled that these regulations served more to convince consumers not to purchase a product, an interest which he stated was not compelling at all.

It was also ruled that the government has other tools at its disposal to achieve the same purported goal. Other options suggested by the judge include raising cigarette taxes (assuming that higher prices will in fact discourage consumption) and factual statements on cigarette packaging (more than just the current Surgeon General Warnings).

If the labeling requirements do go into effect (the government is expected to appeal this ruling), the required images would cover the top half of the front and back of a cigarette package. These images would also be required to cover the top twenty percent of any cigarette advertising in print. In considering these requirements, Judge Leon stated that “the warning labels were too big to pass constitutional muster.”

Even as a non-smoker, these regulations certainly appear to be overreaching and simply improper. The government must respect First Amendment rights for commercial speech just as they do for individual speech. And, as is the case in regulating individual speech, the government must be wary and not overreach when regulating commercial speech. Adopting regulations that can be seen as nothing more than an attempt to scare consumers from purchasing cigarettes does not in any way fall under proper regulation of free speech.

Judge Leon is absolutely correct in that the government has other, less overreaching, ways to achieve the same goals. For years, cigarette packaging has been required to carry Surgeon General Warnings. Smokers have been exposed to education through government and non-government outlets warning them, sometimes in the graphic detail proposed by these regulations.

The government does have a responsibility to warn the public of potential side effects of drugs, drugs including tobacco. However, once this warning is provided, it is up to the consumer to make a conscious decision as to whether they wish to assume the risks. It is not the government’s duty to use scare tactics to affect the consumption of these products.

For further information, click here.

Thursday, February 23, 2012

Unconstitutional Warrants and Officers' Liability

On Wednesday, the United States Supreme Court issued three decisions. One of these decisions, Messerschmidt v. Millender, dealt with an officer’s liability for seizing property based on allegedly unconstitutional warrant. In this case, the Supreme Court held that the officers could not be sued for seizing property under such a warrant.

This case arose from a 2003 search of Augusta Millender’s home; the officers were searching for Ms. Millender’s foster son and/or a shotgun used in a domestic assault. Police did seize a handgun owned by Ms. Millender, which she claimed was hers and was used strictly for personal defense. Later, a court ruled the search warrant unconstitutional under the Fourth Amendment as “the warrant improperly allowed the police to search for ‘all handguns, shotguns and rifles’ and “evidence showing street gang membership.”

However, on Wednesday, the Court ruled that Ms. Millender could not hold the officers liable for the search, even under a warrant later found to be unconstitutional, by relying on the 1986 Supreme Court ruling in Malley v. Briggs; in this case, the Court held that officers in these situations should not be granted immunity from lawsuits such as this “only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” In the most recent case, Justice Roberts held that Ms. Millender’s case did not fall under this exception.

Justices Kagan, Sotomayor and Ginsberg dissented. Justice Kagan wrote that she felt the search for guns was proper, but felt that the search for gang-related evidence (per the search warrant in question) was not connected to the initial incident that gave rise to the warrant. Justice Sotomayor strongly disagreed that the officers’ actions were objectively reasonable. She wrote, “It bears repeating that the founders adopted the Fourth Amendment to protect against searches for evidence of unspecified crimes, and merely possessing other firearms is not a crime at all.” The fact that the officer’s superiors and a judge approved a warrant did not sway her opinion in the least.

The need to protect officers from liability is understandable. If officers are constantly worried about what they will and won’t be held liable for seizing under an apparently valid warrant, then they may easily overlook crucial evidence or fail to seize it “just in case”. Officers must be protected so that they can go about doing their job efficiently and effectively. The officers executing the warrant should be able to rely on their superiors and the judge issuing the warrant.

Perhaps the real issue in this case is determining how this warrant was issued with the questionable language to begin with. “Evidence showing street gang membership” without further explanation is overly broad and can lead to many items being seized by police. Also, this warrant was issued base on a domestic assault complaint; the warrant in question should have been limited to searching for evidence based on that complaint. Not only did this language cause the warrant to fail under Fourth Amendment scrutiny, but it also required the officers to execute judgment calls and seize items they should not have.

For the article from the New York Times, click here.

Thursday, February 16, 2012

More States Debating Same Sex Marriage

Another week and three more states appear to be on the verge of approving the ability of same-sex couples to marry within their jurisdictions. Legislation was signed on Monday in Washington which will take effect no earlier than June that will allow same-sex marriage in the state. Both New Jersey and Maryland have bills before their governments today which would legalize gay marriage. Many expect the measure to pass in New Jersey, while questions remain in Maryland. However, even with passage of the bill in New Jersey Governor Chris Christie is expected to veto the bill.

“In Maryland, the House of Delegates will begin debate on the "Civil Marriage Protection Act" sponsored by Gov. Martin O'Malley, a Democrat.” The bill has already been passed by two House Committees, but there remains doubt as to if there are enough supporters to get through the House vote. Last year Maryland was unsuccessful in passing similar legislation.

In New Jersey, “the state Senate approved the proposed Marriage Equality and Religious Exemption Act on Monday.” It is expected the measure will pass the House later today. Once passage occurs, it is almost certain that the legislation will be vetoed. However, I have a hard time fully disagreeing with the governor’s reasoning for promising a veto: he is fully expected to back a referendum in November where he feels it will be up to the voters, and not the legislature, to allow same-sex marriage. Unlike some other jurisdictions where voters have had a voice, a recent poll indicates “that a majority of New Jersey voters support the right of same-sex couples to marry.” As such, supporters of the bill feel that it is only a matter of time before same-sex marriage will be legalized in New Jersey. And, when such legislation passed, it will be the true desire of the voters who cared enough to voice their opinion on the subject.

For further information, you can find relevant articles here and here.

Thursday, February 2, 2012

Same-sex Marriage in Washington State

The state of Washington appears to be on track to join six previous states that have passed laws legalizing same-sex marriage. The Washington Senate approved the Bill and now it is to be sent to the House where it is expected to pass without issue. However, opponents of the Bill are already prepared to challenge the law with a referendum.

The Bill in question dealt with several issues regarding same-sex marriage; issues regarding legal protection for religious groups and organizations and businesses that object to gay marriage. An amendment allowing for a referendum clause was refused, but opponents still promise to use a referendum to attempt to overturn the pending law. However, no action can be taken until the Bill is passed by the House and becomes law.

Depending on the outcome of the referendum, the law could allow same-sex couples to begin wedding in Washington as early as June. However, if enough signatures are obtained for a referendum the outcome will not be final and same-sex marriages will be postponed until after the November election.

I have written about same-sex marriage on several occasions on this blog, and my opinion as to whether they should be legalized or not remain the same. However, in this case one of the more interesting items are some quotes by the Bill’s sponsor stating that lawmakers who vote against gay marriage “are not, nor should they be accused of bigotry.” He continues on by saying that, “Those of us who support this legislation are not, and we should not be accused of, undermining family life or religious freedom,” and “[m]arriage is how society says you are a family.”

Senator Ed Murray, the Bill sponsor, does not want unwarranted personal attacks at other legislators due to their vote; whether their vote is due to their personal prejudices or feelings or because they feel they are best serving their constituents, it is wrong to automatically assume and label them as something they are not. The Senator also attempts to head off the major opposition at the pass by stating that this is not an attack on religion or “traditional” families; it is merely allowing same-sex couple to be a family in the eyes of society. Same-sex couples already live as and are viewed by many as families, and allowing them to marry only makes this status “official”.

For the article from the Washington Post, click here.

Thursday, January 19, 2012


People who visited Google, Wikipedia or a number of other sites yesterday were greeted with severe changes to their usual Web browsing experience. These pages advertised their opposition to new proposed Internet piracy bills PIPA (Protect IP Act) and (Stop Online Piracy Act) and encouraged their users to learn more about these proposed bills.

For those that did not take this advice and opportunity, the primary argument, in nutshell, is that these bills will defeat the original purpose of the Internet. Their goal is to attempt to stop the pirating of images, movies and other original works created by other people. While this is a laudable goal, which even the protesting sites respect, they feel these bills are overbroad and compare them to “taking a sledgehammer to something when you need a scalpel.”

An interesting example of this alleged overreach is provided here. To sum it up, an ISP can shut down a site based on a complaint that the site has “pirated” materials. According to the example, it does not matter how rough or dissimilar the work is, if it in any way simulates the work created by another, the site may be banned.

And, the alleged offending site has no recourse. United States Internet service providers are granted immunity for what they decide to pull from their service. Extending the example given above, a person’s personal family Web site could be pulled based on the fact that they have videos of their children singing copyrighted songs, no matter how bad their singing may be. And once pulled, the person cannot then seek recourse.

Like many actions, the intentions behind these bills are justifiable. But the wrong tools are being used. This “sledgehammer” has the potential to violate the First Amendment’s guarantee of freedom of speech and devalue the Internet entirely. There are ways to reach these goals without blowing up the whole infrastructure of the Internet.; SOPA and PIPA are not the right tools to do this.

Thursday, January 12, 2012

The Supreme Court Authorizes a "Ministerial Exception"

This week, the United States Supreme Court issued a decision recognizing a “ministerial exception” in relation to employment discrimination laws. Some believe that this is the Supreme Court’s “most significant religious liberty decision in two decades.” This ruling allows churches and religious groups the right to hire and fire their religious leaders without any type of government intervention.

Chief Justice Roberts conceded that employment discrimination is a very serious matter; however, this issue is apparently outweighed by the “interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” While the ruling created the “ministerial exception”, limited guidance was provided in how to apply this exception. Also, while this exception protects religious organizations from employment discrimination claims, it does not negate the possibility of criminal prosecution and does not affect any other protections put in place for employees of these organizations.

In his concurring opinion, Justice Thomas suggested that it is not the court’s place to determine who qualifies for this new exception, and instead it should be the religious organization’s responsibility to make such a decision. In another concurring opinion, Justice Alito stated that concentrating on the title of “minister” was too stringent as this is a term primarily used only in Protestant denominations; he suggested that this exception instead be extended to “any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

While other protections remain in place for employees of religious organizations, this ruling, without any type of true guidance on its application, is problematic. For those that truly work as “ministers”, no matter their religious affiliation or actual title, the application of this exception is straightforward – people who lead their religious organization and/or performs what one would consider typical religious duties cannot bring claims of employment discrimination if they are terminated.

However, this ruling has the ability to be overextended in cases where employees of religious institutions minimally serve as “ministers”. In fact, the case that about this ruling involved an individual who only served forty-five minutes per day serving in a religious capacity; the rest of her work day was performed teaching secular subjects. While there were other factors the court considered before extending this “ministerial exception” in this case, it remains uncertain what type of minimal service is required before a religious organization can be exempt from employment discrimination under this exception.

For the complete article from the New York Times, click here.

For the Supreme Court decision, click here.