Monday, July 14, 2014

10th Circuit weighs in on the freedom to marry

Two weeks ago, in Kitchen v. Herbert, the 10th Circuit Court of Appeals struck down Utah’s constitutional ban on same-sex couples’ ability to marry. The court held that “The Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.”

This case is a major victory for same-sex couples. It is also likely to go to the Supreme Court on appeal. The case hinged on two key points: the federal courts authority to dictate state law on this issue and whether there is a fundamental right for same-sex couples to marry.

The first issue basically boils down to balancing the nation’s federalist structure and the rights of a minority class. Courts don’t want to hinder the rights of states, but they also must protect the freedoms of minority classes. As the court explained, exercising fundamental rights are not something to be put up to a vote by one’s peers. This is so the majority may not take away constitutional freedoms from minority classes.

We saw this with the civil rights movements of the 20th century. When the ACLU challenged bans on interracial marriage in the pivotal case Loving v. Virginia, a mere 20% of the population approved of such marriages. Now, a majority of Americans actually support allowing same-sex couples to marry (for example 61% of Coloradans approve of same-sex marriage), yet only 19 states and the District of Columbia allow same-sex couples the freedom to marry. So it would seem that even the majority does not support taking away the fundamental right to marry.

Utah’s Attorney General argued that the freedom to marry is not a fundamental right for same-sex couples and that same-sex marriages are not conducive to the “family structure”.  First, Utah contended that same-sex marriage cannot be a fundamental right because it has not been deeply rooted in our nation and its history. According to Utah, “many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” The court disagreed, using the same logic as Loving. They found that marriage is a basic civil right of man. Not of a man and a woman, but of man in the colloquial sense. Marriage is a right for all men and women, regardless if they choose to marry someone of the same sex. Marriage has had a tradition of being between a man and a woman. Just because there has been a tradition of discriminating against a class of people that doesn't make it right. “It is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

Second, Utah argued that same-sex couples should be denied the freedom to marry because they are not naturally procreative and can’t reinforce the childrearing family structure. This just doesn't make sense. Allowing individuals to marry who they choose and to create a loving family of their choice can only reinforce the childrearing family structure. Recent studies have alluded that children raised by same-sex couples are happier and healthier than their peers raised by heterosexual couples, not the other way around. By denying same-sex couples the ability to marry, children that are already being raised by these couples are humiliated and increased hardship is added to their lives by making it harder for them to understand their own family structure. So, the exact opposite of what Utah argues.

Further, just because same-sex couples can’t procreate, in the classical sense, that is no reason to deny them a fundamental freedom. Same-sex couples may simply not choose to have children, which is a right of any married couple. Or, if a same-sex couple so chooses, there are options for them to conceive, such as surrogacy. The other reason this argument doesn’t make sense is that other non-procreative couples are permitted to wed by the state. Parents who adopt and don’t have babies of their own are given full rights and are allowed to marry. Are we to strip the right to marry from all who are sterile? The 10th Circuit doesn't think so, and neither does it think the freedom to marry should be denied to same-sex couples.

With this groundbreaking decision in the 10th Circuit, ripples are already starting to be felt in 10th Circuit states. In Wyoming, a motion for summary judgment citing this decision has already been filed for the Courage v. Wyoming case. Three county clerks in Colorado have recently announced that they will issue marriage licenses to same-sex couples even though the ruling in Kitchen has been stayed pending a petition to the Supreme Court. Just last Wednesday, Utah announced it is appealing directly to the United States Supreme Court and that Utah’s ban on same-sex marriage will be presumed constitutional until struck down by the highest court. With these developments, now all we can do is wait and see if the Supreme Court takes the case and finally resolves this issue for the country. We wait to see if marriage for all committed couples is finally allowed throughout the country.

Seth Griswold
ACLU of Wyoming Legal Extern
JD Candidate 2016

Tuesday, July 1, 2014

ACLU of Wyoming goes to Cody

Last week the ACLU of Wyoming staff attended the 26th Annual Conference of the National Consortium on Racial and Ethnic Fairness in the Courts hosted by the Heart Mountain Wyoming Foundation in Cody. Keynote addresses from Honorable Judge Lance Ito, former U.S. Secretary of Transportation Norman Mineta, and former U.S. Senator Alan Simpson set the tone for the entire conference. Each of them spoke about their experiences with Heart Mountain, and detailed how these experiences impacted their respective professional careers.

The National Consortium is a group committed to encouraging the highest courts of each state to examine the treatment accorded minorities in their courts; sharing the collective knowledge of task forces and commissions with courts, law enforcement, and the community; and providing technical assistance and expertise to commissions, task forces, and other interested organizations and individuals on the subject of racial and ethnic fairness.

Heart Mountain was an ideal setting to host this conference which focused on the equal treatment of all parties involved our judicial system. The Heart Mountain Interpretive Learning Center memorializes the history of the confinement of over 14,000 Japanese Americans at Heart Mountain during World War II through photographs, oral histories and interactive exhibits. This site stands as a reminder of when our legal system failed, and relates directly to the purpose of the conference.

Our staff attended panels focused on everything from juvenile justice to jurisdictional issues between state and Tribal Courts. The speakers at each of these panels were outstanding. One of the panels included Eric Balaban, a senior staff attorney with the National Prison Project of the ACLU. Mr. Balaban gave an excellent presentation on debtor’s prison and the ACLU’s 2010 report on this issue. During Sen. Al Simpson’s keynote address, he told conference attendees that the failure of most things, from court rulings to public policy, can be explained by one of four things: emotion, fear, guilt, or racism. 

Wednesday, May 28, 2014

Lock ‘Em Up and Throw Away the Key

We believe that the character of society should be judged on how we treat our most vulnerable members. The ACLU of Wyoming advocates for the safe and humane treatment of prisoners – both for their sake while they are incarcerated and for society’s sake when they are released.

While it’s easy to think we can just “lock ‘em up and throw away the key,” about 97% of Wyoming prisoners will eventually return to our communities. How we treat prisoners should give us an idea of what we can expect from them when they come home.

Last week, we released our annual report, Incarceration in Wyoming, which compiles data of complaints our organization received from prisoners in Wyoming in 2013. Prisoners requesting assistance with their criminal cases generated nearly fifteen percent of complaints from Department of Corrections prisoners, which is more than double the number from the previous year, and over twenty percent of complaints from prisoners in jails. Oftentimes, people sitting in jail request help with their criminal cases before they go to trial. People who are writing from prison are requesting help on cases for which they have been tried and sentenced. This may reflect a growing loss of faith in the integrity of the justice system. There was a significant decrease in complaints of inadequate medical care in both jails and prisons; however, we believe that access to adequate medical and mental health care remains a serious problem for prisoners.

This year’s report focuses on the cost of overincarceration in Wyoming, and across the country. More Americans are imprisoned than ever before at a great cost to taxpayers, with limited benefits to public safety. There are 2.3 million people behind bars in this country – which is larger than prison populations in either China or Russia. Our bloated prison system has grown not as a result of an increase in crime, but in large part due to changes in sentencing policies and the war on drugs.
In Wyoming, less than one tenth of crimes are considered violent – property crimes alone constitute approximately 91% of the crimes in the state. A quarter of those incarcerated in America are locked up for drug offenses, and in 2010, at least 67% of all drug arrests in Wyoming was for simple marijuana possession. These are staggering numbers when you consider that it costs between $35,000-$53,000 per prisoner per year to keep people in prison in Wyoming. In fact, the biennial budget for the Wyoming Department of Corrections rose to over $300 million in 2013-14.

Studies have shown that prison does not deter crime. In addition to keeping communities safe and treating people fairly, our criminal justice system should be cost effective – using taxpayer dollars and public resources wisely. We can reduce the amount we spend on corrections – not by slashing budgets and forcing prison officials to take shortcuts and cut rehabilitative programming, but by reconsidering who we send to prison in the first place.

In order to reduce incarceration, we recommend:

         Expanding the use of deferred adjudication and expungement of criminal records for 
        low-level offenders
         Reducing reliance on pre-trial detention
         Increasing use of alternatives to incarceration, such as community sentencing
         Instituting a review process to consider modification of sentence after a period of 
         Expanding time credits for good behavior
         Legalizing or decriminalizing marijuana use and possession

Incarceration includes a directory of all Wyoming Department of Corrections institutions and county jails, along with “Know Your Rights” information. We distribute these resource guides to inform prisoners of their constitutional rights depending on the nature of their complaint.

 >>> Download<<< Incarceration in Wyoming: 2013 Report on Prison and Jail Complaints (in pdf)