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June 28, 2016 0

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 0

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 2

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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