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August 28, 2014 0

Moving Forward From Ferguson

“His­tory sim­mers beneath the sur­face in more com­mu­ni­ties than just Fer­gu­son,” Attor­ney Gen­eral Eric Holder aptly rec­og­nized dur­ing his visit there. The con­ver­sa­tion about Fer­gu­son can­not start with the death of Michael Brown, a young unarmed black man shot to death by a white police offi­cer.  Though tragic in and of itself, the story goes back much further.ferguson-civil-rights

It is a sad tru­ism that America’s laws—and the peo­ple charged with enforc­ing them—have not always pro­tected com­mu­ni­ties of color.  In the infa­mous Dred Scott case, which orig­i­nated just miles from Fer­gu­son, the Supreme Court shame­fully ruled in 1857 that African Amer­i­cans had “no rights which the white man was bound to respect.”  Though the case served as a cat­a­lyst for the Civil War and the 13th, 14th and 15th Amend­ments rat­i­fied shortly there­after to super­sede the rul­ing, deep-seated racism continued.

Jim Crow laws seg­re­gated soci­ety and rel­e­gated African Amer­i­cans to second-class cit­i­zens. Lynch­ings ter­ror­ized com­mu­ni­ties.  All too often not only did law enforce­ment fail to pro­tect African Amer­i­can com­mu­ni­ties, but police offi­cers par­tic­i­pated in the lynch mobs.  Dur­ing the Civil Rights Move­ment, now-infamous images cap­tured police offi­cers using dogs, fire hoses and billy clubs against peace­ful protestors.

Since the Civil Rights Move­ment half a cen­tury ago we have worked hard as a nation to move towards a more just and equal soci­ety. We have come a long way, but Fer­gu­son stands as a stark reminder that we still have a long way to go.

In address­ing the cri­sis in Fer­gu­son, the first step must be open and respect­ful dia­logue.  We can­not move for­ward unless and until we face the past.  Part of that dis­cus­sion must be about the role of law enforce­ment and their rela­tion­ship with the com­mu­ni­ties they have sworn to serve and protect.

Since 1999 the Anti-Defamation League, in part­ner­ship with the United States Holo­caust Museum, has con­ducted train­ings for law enforce­ment—from police chiefs and the head of fed­eral agen­cies to recruits and new FBI agents—exploring what hap­pens when police lose sight of the val­ues they swore to uphold and their role as pro­tec­tors of the  peo­ple they serve. By con­trast­ing the con­duct of police in Nazi Ger­many, and the role that law enforce­ment is expected to play in our democ­racy, the pro­gram under­scores the impor­tance of safe­guard­ing con­sti­tu­tional rights, build­ing trust with the peo­ple and com­mu­ni­ties they serve, and the tragic con­se­quences when there is a gap between how law enforce­ment behaves and the core val­ues of the profession.

We know from our work that the vast major­ity of offi­cers care deeply about the com­mu­ni­ties they serve.  But that is not to say police are infal­li­ble.  None of us is.  And there are cer­tainly some within law enforce­ment who engage in mis­con­duct, as is the case in every pro­fes­sion.  But the bad acts of some can­not and do not define law enforcement.

Amer­ica is strongest and safest when there is mutual under­stand­ing and trust between law enforce­ment and com­mu­ni­ties.  We must seek to build those bridges by rec­og­niz­ing our trou­ble­some past, acknowl­edg­ing the prob­lems per­sist­ing today, and com­mit­ting to changes that move us for­ward to a more per­fect union.

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July 14, 2014 0

Hobby Lobby Elicits Varied Editorial Responses

On June 30, the Supreme Court in Bur­well v. Hobby Lobby affirmed the right of family-owned com­pa­nies to deny employ­ees, based on the reli­gious beliefs of the employer, health insur­ance cov­er­age for con­tra­cep­tives. As Pro­fes­sor Erwin Chemerin­sky warned at the ADL’s 2014 Supreme Court Review, the deci­sion could have far-reaching impli­ca­tions for work­ers’ civil and reli­gious rights.newspapers-hobby-lobby

Edi­to­r­ial boards for the nations’ top news­pa­pers opposed the land­mark deci­sion by a 2–1 ratio. Of the fifty news­pa­pers with the high­est cir­cu­la­tion, twenty-five dis­agreed with the Supreme Court’s posi­tion in Hobby Lobby. Thir­teen sup­ported the deci­sion. Twelve offered no opin­ion on the topic.

Of those peri­od­i­cals that opposed the deci­sion, some objected to the Supreme Court’s increas­ing will­ing­ness to grant legal pro­tec­tions to cor­po­ra­tions that tra­di­tion­ally have been reserved for human beings. The Cleve­land Plain Dealer insisted that “cor­po­ra­tions are not ‘per­sons’ who think, breathe and exer­cise first-amendment rights or prac­tice reli­gious beliefs,” and warned that “[t]reating them as if they are will inevitably nar­row free­doms for oth­ers.” The Detroit Free Press called the deci­sion an expan­sion of “the majority’s already inflated notion of cor­po­rate personhood.”

Other oppo­nents view the deci­sion as a set­back for repro­duc­tive rights. The San Jose Mer­cury News crit­i­cized the Court for fail­ing to rec­og­nize the impor­tance of access to con­tra­cep­tives for women’s rights: “World­wide, the sin­gle great­est fac­tor in lift­ing soci­eties out of poverty is women gain­ing the abil­ity to con­trol when they become preg­nant.” The Min­neapo­lis Star Tri­bunesaid that “allow­ing an employer to choose which type of con­tra­cep­tion mer­its cov­er­age reverts to an ear­lier, darker age in atti­tudes about women’s role in reproduction.”

Still oth­ers fear that the deci­sion opens the door to fur­ther ero­sion indi­vid­u­als’ rights and gov­ern­ment entan­gle­ment in the exer­cise of reli­gion. The New York Times called the deci­sion “a rad­i­cal depar­ture from the court’s his­tory of resist­ing claims for reli­gious exemp­tions from neu­tral laws of gen­eral applic­a­bil­ity when the exemp­tions would hurt other peo­ple.” USA Today warned of the “deeply dis­turb­ing propo­si­tion” that the deci­sion could force the gov­ern­ment to judge “whether a business’s reli­gious prin­ci­ples merit spe­cial treat­ment that its more sec­u­lar com­peti­tors don’t get.” The Wash­ing­ton Post urged Con­gress to limit the dam­age of the deci­sion by leg­isla­tively over­turn­ing it.

Sup­port­ers, how­ever, hail Hobby Lobby as a bold recog­ni­tion of reli­gious lib­erty. The Wall Street Jour­nal called the deci­sion “an impor­tant vin­di­ca­tion of reli­gious lib­erty in this (still, bless­edly) con­sti­tu­tional repub­lic.” The New York Daily News cel­e­brated that Court’s con­clu­sion that “own­ers of closely held com­pa­nies should not be forced to sac­ri­fice their reli­gious lib­erty sim­ply because they incor­po­rated to do business.”

How­ever one views the Court’s deci­sion, Hobby Lobby clearly touches on many polit­i­cal and legal fault lines. The ADL believes that the deci­sion threat­ens many anti-discrimination laws and will work to limit its impact.

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July 11, 2014 0

Order in Wheaton College Case Raises More Concerns About Hobby Lobby

On the heels of the deeply trou­bling and con­tro­ver­sial Hobby Lobby deci­sion, the Supreme Court on July 3rd issued another dis­turb­ing order in a chal­lenge to the Afford­able Care Act (“ACA”) con­tra­cep­tion man­date.  This order, cou­pled with the Hobby Lobby deci­sion, indi­cates that the Court may be effec­tively strik­ing a cen­tral require­ment from an impor­tant reli­gious lib­erty law – the fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”).  That require­ment is that some­one claim­ing pro­tec­tion under the law must show that his or her reli­gious prac­tice was sub­stan­tially bur­dened.supreme-court-civil-rights

In Wheaton Col­lege v. Bur­well, a religiously-affiliated col­lege that opposes cer­tain forms of birth con­trol is chal­leng­ing the process by which they indi­cate to the gov­ern­ment that they qual­ify for an excep­tion to the con­tra­cep­tion man­date. This excep­tion allows reli­gious, non-profit employ­ers such as the col­lege, to opt out of pro­vid­ing employee health insur­ance that cov­ers con­tra­cep­tion.  But, iron­i­cally, the col­lege claims that apply­ing for this excep­tion (which involves com­plet­ing a two-page gov­ern­ment form) vio­lates its rights under RFRA, which was the same law that for-profit cor­po­ra­tions suc­cess­fully used to chal­lenge the man­date in the Hobby Lobby case.  In the July 3 order, the Court employed a rarely used legal mech­a­nism to tem­porar­ily block imple­men­ta­tion of the excep­tion while the case is still under appeal.

RFRA requires the fed­eral gov­ern­ment to demon­strate the most strin­gent con­sti­tu­tional stan­dard when it imposes a “sub­stan­tial” bur­den on a person’s reli­gious exer­cise.   As ADL pointed out in its ami­cus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term sub­stan­tial is not an acci­dent, but was included to make clear that the statute’s strong pro­tec­tions could not be trig­gered by inci­den­tal or minor bur­dens on reli­gion.   In fact, the Sen­ate Report on RFRA states that Con­gress added the term so that the law “would not require [a com­pelling gov­ern­ment inter­est] for every gov­ern­ment action that may have some inci­den­tal effect on reli­gious institutions.”

Based on this report and other prece­dent, the brief ADL joined in Hobby Lobby argued that the sec­u­lar, for-profit cor­po­rate plain­tiffs were not eli­gi­ble for RFRA’s pro­tec­tions because, among other rea­sons, any bur­den on their reli­gious exer­cise was inci­den­tal and not sub­stan­tial.  Unfor­tu­nately, the Court did not agree with ADL’s argu­ment.  It ruled that appli­ca­tion of the con­tra­cep­tion man­date to the cor­po­ra­tions did sub­stan­tially bur­den their reli­gious exer­cise and vio­lated RFRA.

The Court’s sub­se­quent action in the Wheaton Col­lege case ren­dered this mis­guided con­clu­sion even more ominous.

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