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June 28, 2016

Court Warns Mississippi Legislature on Efforts to Circumvent Marriage Equality

Yesterday, a federal court gave Mississippi’s legislature a stern warning about its efforts to circumvent the U.S. Supreme Court’s marriage equality ruling.  The warning was made in the context of plaintiffs to a marriage-equality lawsuit asking the U.S. District Court for Northern Mississippi to reopen their case in a challenge to HB 1523, the State’s so-called “Protecting Freedom of Conscience from Government Discrimination Act,” which goes into effect on July 1st.

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Shortly after the Supreme Court’s Obergefell decision, the District Court issued a permanent order making the marriage-equality ruling binding on the “… State of Mississippi and all of its agents, officers, employees, and subsidiaries….”

Earlier this year, however, the State enacted HB 1523, which broadly allows Mississippians to deny goods or services to their fellow citizens based on their own “religious beliefs or moral convictions” that marriage is limited to opposite sex couples.  One HB 1523 provision empowers clerks and their subordinates to refuse issuance of marriage licenses based on this religious or moral viewpoint provided that “… marriage is not impeded or delayed as a result of any recusal.”  But the statute contains no protections to safeguard against impediments or delays.

The plaintiffs rightly argue that HB 1523 conflicts with the District Court’s permanent order, and are insisting that it be revised to fully protect their 14th Amendment marriage-equality rights.

In granting the plaintiffs’ request to reopen the case, the Court found that HB 1523 “… may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell.”  Furthermore, it warned that State legislature that:

[T]he marriage license issue will not be adjudicated anew every legislative session.  And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

The plaintiffs’ request to the Court is part of a broader challenge to the constitutionality of HB 1523, which contains other provisions favoring particular religious or moral viewpoints, including limiting sexual relations to opposite-sex marriage and basing gender identity strictly on biological sex.   The law’s preferences are clearly inconsistent with the First Amendment’s free speech and establishment clauses.  Based on this court ruling, with its warning emphasizing judicial vigilance, there is reason to believe that the discriminatory HB 1523 will eventually be struck in its entirety.

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June 24, 2016

Three Years After Shelby County, Voters Are Really Getting Soaked

This weekend marks the third anniversary of Shelby County v. Holder, in which the Supreme Court, by a  narrow 5-4 margin, struck down key rain umbrellaprotections of the landmark Voting Rights Act of 1965 (VRA), essentially gutting the heart of the nation’s most important and effective civil rights law.  We were reminded of the dangerous struggles to enact this law when, earlier this week, the Department of Justice closed its investigation into the murders of three civil rights workers (Andrew Goodman, Michael Schwerner, and James Chaney) killed by the Klan as they were working to register voters in Mississippi in June, 1964.

Sec­tion 5 of the VRA requires that, in certain jurisdictions with a history of dis­crim­i­na­tory vot­ing prac­tices, the fed­eral gov­ern­ment must approve any changes in elec­tion laws, such as changes in polling site loca­tions and redraw­ing con­gres­sional dis­trict lines.  The jurisdictions that were required to submit changes were determined by a formula based on a his­tory of dis­crim­i­na­tory vot­ing prac­tices. The Court held this formula uncon­sti­tu­tional, saying that the formula was out of date.  In doing so, the Court substituted its views for Congress’s own very extensive hearings and findings conducted in 2006 when Congress almost unanimously voted to reauthorize the VRA for another 25 years. In Shelby County, the Court specifically invited Congress to create a new coverage formula.

Justice Ginsburg’s powerful dissent in the case analo­gized strik­ing down key parts of the VRA to “throw­ing away your umbrella in a rain­storm because you are not get­ting wet.” Unfortunately, Justice Ginsburg’s prediction that, with­out the pro­tec­tions of the VRA, voter sup­pres­sion prob­lems would again rain down on those for­merly cov­ered juris­dic­tions, has proven quite prescient.

In fact, there is growing evidence that the ruling has had a devastating impact on ballot access and voting rights in those previously-covered VRA jurisdictions.  A discriminatory redistricting plan and harsh voter ID law in Texas – which had been part of submitted plans that the Justice Department and federal courts had specifically refused to preclear the previous year – threaten to disenfranchise hundreds of thousands of eligible African American and Latino voters. In Alabama, following the enactment of a restrictive voter ID law, DMV offices were closed in counties with some of the highest minority populations, making it much more difficult to obtain IDs necessary to vote.  North Carolina passed one of the harshest, most restrictive voting laws in the country. And in Arizona we saw in the primary election earlier this year that thousands of people could not vote because Maricopa County, the largest county in the state, dropped from more than 400 polling places to just 60. Overall in 2016, according to the Brennan Center for Justice, 17 states have new voting restrictions in place.

Now, as voters face the prospect of the first Presidential election in 50 years without the robust protections of the VRA, there are dire discriminatory warning signs – unless Congress acts,

A bipartisan bill pending now before Congress, the Voting Rights Advancement Act, would create a modern formula for preclearance and put in place much-needed voting rights protections. On this third anniver­sary of Shelby County, all Americans should learn about the important legacy of the VRA – and take action to urge Congress to restore the full vitality of the VRA by enacting the Voting Rights Advancement Act.

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March 1, 2016

Alito Got It Right In Jewish Inmate Case

Yesterday, the U.S. Supreme Court refused to review a troubling lower court decision involving the religious liberty rights of an observant Jewish inmate from North Carolina.  In a powerful dissent, Justice Alito pointed out why the lower court was wrong and his fellow Justices should have taken up the case.supreme-court

Israel Ben-Levi claimed that the North Carolina Department of Public Safety (NCDPS) violated his rights under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying his request to study Torah with two other Jewish inmates.  In rejecting his request, NCDPS asserted that the inmate misunderstood his own faith.  For a group to study Torah, NCDPS claimed, there must be ten Jewish men – a minyan – or qualified Jewish leader such as Rabbi.  The lower court agreed with this argument and also found Mr. Ben-Levi was not subject to future harm because he had been transferred to a prison with a Rabbi.

Justice Alito’s dissent correctly pointed out that this decision was discriminatory “[b]ecause NCDPS’s policy rests on its understanding of Jewish doctrine, the policy does not apply to other religions.”  Furthermore, it violates longstanding First Amendment case law against government interpreting religious doctrine:

[F]ederal courts have no warrant to evaluate  “the validity of [Ben-Levi’s] interpretations.” … By ignoring Ben-Levi’s actual beliefs and focusing solely on NCDPS’s understanding of Judaism, respondent and the courts below considered the wrong question.  

Although the Supreme Court’s rejection of the case does not approve of the lower court decision, we could not agree more with Justice Alito that “the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.”

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