Sunday, January 25, 2015

Fair Housing Law at Risk at High Court

       The Supreme Court took its first limited steps against residential segregation long before it moved to desegregate public schools. But the court’s rulings did not prevent federal, state, and local governments from establishing policies in the mid-20th century that redlined African Americans into racial ghettos while helping to subsidize white neighborhoods in cities and suburbs.
       The court struck down local ordinances aimed at enforcing residential segregation in separate cases in 1917 and 1927 and followed in 1948 with a ruling that barred courts from enforcing racial covenants in housing. The court in 1968 went so far as to rule that racial discrimination in housing had been illegal for more than a century under the Civil Rights Act of 1866, which guaranteed blacks the same property rights as enjoyed by whites.
       Months before that ruling, however, Congress had passed and President Lyndon B. Johnson had signed a comprehensive law, the Fair Housing Act, to bar discrimination in housing on the basis of race or other categories. As Justice Ruth Bader Ginsburg aptly remarked last week [Jan. 22], the law was intended to undo “generations of rank discrimination.” A half-century later, the Roberts Court could be on the verge of unsettling well established precedents to limit the use of the law to prevent housing policies that have discriminatory even if unintentional effects on African Americans and other minorities.
       Ginsburg’s comment came during an hour of legalistic arguments in a closely watched case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. The case tests whether the Fair Housing Act applies not only to intentional discrimination but also to so-called “disparate impact” cases. (Think: “discriminatory effects.”)
       The Roberts Court has been eager to decide this issue, even though 11 federal courts of appeals have been unanimous in recognizing disparate impact liability under the law. Twice in the last three years, the court agreed to hear cases on the issue, but the Obama administration and civil rights groups helped to get the cases settled in order to remove them from the court’s docket.
      In the current case, the Dallas-based Inclusive Communities Project, which seeks to promote housing opportunities for minorities, has sued the state’s housing agency for allegedly concentrating federal subsidies for low-income housing in minority neighborhoods. The state says the statistical disparity results from applying a laundry-list of racially neutral factors. With a trial still pending, Texas’s Republican state government asked the Supreme Court in effect to knock out the legal theory of the project’s suit.
      Chief Justice John G. Roberts Jr. left no doubt about his inclinations in the case in the few questions that he put to lawyers representing the Obama administration and Dallas group. Roberts suggested that the state agency faced an insoluble dilemma: it could be sued for fortifying segregation by subsidizing developments in minority neighborhoods or for denying housing opportunities for minorities if it backed development in white neighborhoods.
      As Roberts posed the issue, the state could not cure any problem except by taking race into account, and the chief justice is on record as opposing any race-conscious remedies in civil rights cases. “The way to stop discrimination on the basis of race,” Roberts famously wrote in a school desegregation case in 2007, “is to stop discriminating on the basis of race.”
       Surprisingly, Roberts’s ability to hold the usual conservative majority appears to turn on Justice Antonin Scalia, who posed tough questions to Texas’s solicitor general Scott Keller during his time at the lectern. Keller’s argument turned in part on differences between the Civil Rights Act’s job discrimination provisions, which have been interpreted to cover disparate impact cases, and the language in the housing law.
       Scalia, co-author of a book on statutory interpretation, said Keller was ignoring 1988 amendments to the law that appeared to assume it covers disparate-impact cases. “Why doesn’t that kill your case?” Scalia asked. “When we look at a provision of law, we look at the entire provision of law, including later amendments.”
       Later, however, Scalia seemed to be his normal self when he questioned Michael Daniel, the lawyer representing the project. “Let’s not equate racial disparity with discrimination,” Scalia said.
       Other justices appeared to be playing their usual roles in the arguments. The liberal bloc — Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — all seemed certain to uphold the broader interpretation of the housing law. Conservative Samuel A. Alito Jr. left no doubt that he believes in the narrower interpretation, while the moderate-conservative Anthony M. Kennedy followed Roberts’s questions with one to the same effect. Clarence Thomas, as usual, asked no questions, but he has voted consistently to limit civil rights laws to intentional discrimination.
        Along with the purely legal arguments pressed by the liberal justices, the pragmatist Breyer challenged the state’s lawyers on practical grounds. “Why," he asked, "should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people [and] has not produced disaster?”
       Twice already, the Roberts-led majority has turned Breyer’s concerns aside in civil rights cases — first in the 2007 ruling that limited racial-balance policies by public schools and then with the 2013 decision gutting the Voting Rights Act. Roberts warned against unsettling precedents in his confirmation hearing, but he appears to be only half a vote away from fundamentally changing federal civil rights law for the third time in less than a decade.

Sunday, January 18, 2015

Law, Politics Combined on Path to Marriage Equality

      The gay rights advocates who met in a Jersey City hotel in 2005 drafted a strategy document that envisioned winning marriage equality for gay and lesbian couples in 10 states by the year 2020. Fresh from the political backlash to Massachusetts' legalization of same-sex marriage the year before, the plan seemed to be the height of realistic ambition.
      Today, the year 2020 seems more likely to mark the fifth anniversary of marriage equality for gays and lesbians nationwide. The Supreme Court set the stage last week [Jan. 16] for an historic ruling by the end of June recognizing a constitutional right for gays and lesbians to marry anywhere in the United States.
      The path to this point has been long and rocky, dating from 1972 when the Supreme Court curtly turned aside a gay Minnesota couple’s effort to get married “for want of a substantial federal question.” The advances have come through a combination of aggressive law and defensive politics, exercised in the face of doubts and divisions within the gay community and stout public resistance from the straight majority.
      The need to combine law and politics was the insight that Evan Wolfson brought to that meeting of marriage equality pioneers in 2005. Wolfson wrote the seminal thesis arguing for a constitutional right for gays and lesbians to marry while a student at Harvard Law School in the early 1980s.
      By the 1990s, Wolfson, then with the Lambda Legal Defense and Education Fund, helped engineer the first trial-level victory for marriage equality in Hawaii only to see it nullified by a political backlash that spread like wildfire nationwide. The court-ordered legalization of same-sex marriage in Massachusetts in May 2004 prompted a raft of anti-marriage amendments in other states later that year.
      As Wolfson's later political director Marc Solomon recounts in his book Winning Marriage, Wolfson countered the gloom among marriage advocates by arguing that success was still achievable but only by changing the political climate as legal challenges continued. As evidence, he cited the Supreme Court’s patient decade-long delay from the 1950s to 1967 before its decision recognizing a right to interracial marriage.
      The strategy document, actually written by Matt Coles of the American Civil Liberties Union, said that both Congress and the Supreme Court would be more willing to insist that “hold out” states bow to widely accepted social norms than to set those standards themselves. Marriage advocates were mostly on the defensive for the next several years. Indeed, Solomon devotes more than one-third of his book to the intensely political fight to keep the Massachusetts legislature from allowing a popular vote to overturn the state high court’s ruling.
      Politics remained a daunting challenge even after legal victories. The California Supreme Court issued a pro-marriage ruling in May 2008 only for voters to overturn it by adopting the anti-gay Proposition 8 in November. The Iowa Supreme Court issued a landmark pro-marriage ruling in 2009 only for three of the justices in the majority to be rejected by voters the year after.
      Wolfson enlisted Solomon, a non-lawyer political operative, to join his New York City-based Freedom to Marry in 2010 to build a national operation to support pro-marriage groups in individual states with money and expertise. The strategy bore fruit in November 2012 when voters in three states — Maine, Maryland, and Washington —  approved gay marriage laws and Minnesota voters beat back an anti-marriage constitutional amendment.
      The marriage movement’s political successes could be seen as vindicating the views of those political conservatives, including leading Republicans such as Florida’s U.S. senator Marco Rubio, who contend that gay rights advocates should have been concentrating all along on politics, not law. But the history shows that political systems would never have taken the gay marriage issue seriously without first being forced by the courts to deal with it.
      The wrapping-up of the movement now depends on the Supreme Court. Marriage advocates scored legislative successes in 2013 in several blue states: Delaware, Rhode Island, Minnesota, Hawaii, and Illinois. But red states continued to hold out. The rapid advances in 2014 came only after federal courts — along with state courts in New Mexico and New Jersey — read the Supreme Court’s decision in 2013’s Defense of Marriage Act (DOMA) case as implicitly requiring recognition of same-sex marriage.
      The Supreme Court in October allowed federal appeals courts to impose marriage equality in five states by refusing to hear the states’ appeals to reinstate gay marriage bans that the appeals courts had struck down. The court’s hands-off approach toward other pro-marriage rulings since then has allowed same-sex marriage to become law in 36 states.
      The court had no choice last week but to accept the gay couples’ appeals from the ruling by the Sixth U.S. Circuit Court of Appeals to uphold same-sex marriage bans in four states: Kentucky, Michigan, Ohio, and Tennessee. The court seemingly has no choice either but to reverse the Sixth Circuit’s decision. Upholding the laws would create, as Chris Geidner writes in BuzzFeed, “an unprecedented mess.” And public opinion polls now show majority support for same-sex marriage. As Wolfson likes to put it, “Americans are ready for freedom to marry.”

Sunday, January 11, 2015

Islam Defamed by Terrorists, Muslim Regimes

      The Bible prescribes death for anyone who “blasphemes the name of the Lord” (Leviticus 24:16), but Jews and Christians have long since discarded this law along with most (though not all) of the Old Testament’s anachronistic prohibitions. In citing the Biblical rule, foreign affairs commentator Fareed Zakaria joined the many other experts who have stressed during the past week that the Koran contains no analogous prohibition against blasphemy.
      To the contrary, the many experts say that Mohammed preached tolerance for persons of other faiths during his life. Yet despite the lack of any scriptural basis, too many present-day Muslims — not only jihadists, but also Islamic governments — believe that they are entitled or even commanded to punish those who take Mohammed’s name or image in vain.
      The Kouachi brothers in France acted most dramatically on this misguided belief last week [Jan. 7] in their terroristic assault on the staff of the satirical newspaper Charlie Hebdo. The native born Chérif and Saïd Kouachi killed 12 people in all in the noontime assault on the newspaper’s Paris offices, including the editor and four of the cartoonists responsible for the mocking images of Mohammed.
      The cartoonists were not actually mocking Mohammed, but those present-day Muslims who invoke his name to justify jihadist attacks on the United States and the West and the universal principles of freedom of speech and religion. In one, a weeping Mohammed is shown saying, “C’est dur d’être aimé par les cons” (“It is hard to be loved by idiots”).
      The killings sparked indignant rage in France and around the world along with defiant solidarity with the victims: “Je suis Charlie.” Encouragingly, many Muslim leaders in France and the United States unambiguously denounced the attack. Two days later, the Kouachis died in a gunfight with French police; an apparent accomplice was killed in a separate gunfight after having first murdered four innocents in a kosher butcher shop.
      The dramatic events overshadowed two other disturbing instances of Islamist excess later in the week carried out not by individual terrorists but by established governments in Muslim countries. In Pakistan, an accused blasphemer, Abib Mahmood, was killed by gunmen [Jan. 8] after authorities released him on grounds of mental illness.
      Mahmood’s release belies Pakistan’s harsh policies toward blasphemy. The U.S. Commission on International Religious Freedom reported in March that 33 people were imprisoned in Pakistan for blasphemy: 14 under sentence of death and 19 others serving life terms. The Associated Press story on Mahmood’s death noted that in Pakistan “people often take the law into their own hands.”
      The next day, a dissident Saudi blogger, Raif Bawadi, was flogged publicly 50 times in Jeddah as the start of a 1,000-lash sentence for supposedly insulting Islam. Badawi was arrested in 2012 for criticizing Saudi Arabia’s clerics on his now banned website Liberal Saudi Network. He was spared a possible death sentence after he was cleared of apostasy, but his criticism of the religious establishment still drew a 10-year prison sentence and $266,000 fine along with the flogging to be carried out over 20 weeks.
      The U.S. State Department sharply criticized the punishment being carried out against Bawadi and has long urged Pakistan to revise its anti-blasphemy laws. But the supposed U.S. allies have taken little if any heed. The religious freedom commission noted that another U.S. ally, Egypt, has four people in prison for blasphemy convictions.
      What can the United States and its European allies do to counter the separate issues of terrorism and freedom-suppressing Islamic governments? Some things, but only so much. Along with human rights groups, the United States and its allies can continue to argue bilaterally and in international forums against anti-blasphemy laws and prosecutions, in individual cases and more generally. To make the case, they can stress, as the religious freedom commission notes, that the laws in operation actually promote religious discord instead of harmony.
      In the aftermath of the Charlie Hebdo massacre, most of the officials and experts appeared to concentrate on the law enforcement aspects of counterterrorism policies. It was noted that the Kouachis had long been on the radar of intelligence and law enforcement agencies in France and the United States, but surveillance lapsed as the brothers lay low for a period of years.
      Along with law enforcement, however, European governments in particular must counter the Islamists’ anti-West narrative by providing a more welcoming environment for Muslims, according to the U.S. State Department’s former special representative to Muslim communities. In a conference call arranged by the Council on Foreign Relations, Farah Pandith explained that many Muslim millennials, like the Kouachi brothers, have come of age since 9/11 and have been “saturated with narratives saying that they don’t belong.” Unsurprisingly, Pandith says, a radical Islamic narrative finds fertile ground among some.
      Pandith, who served at the State Department from the Danish cartoon crisis of 2003 through 2013, says the government’s programs for countering the Islamist terrorist narrative are underfunded. European governments, she says, need to dismantle policies that limit religious expression for Muslims and to be more receptive to claims of anti-Muslim discrimination. Unfortunately, many European politicians exploit instead of seeking to redirect the anti-Islamic sentiments among the public.
      Muslim organizations and individuals have a responsibility as well. The world’s 1.5 billion Muslims have no collective responsibility for the Kouachis, of course, but silence = death. Islam’s faithful believers must do all they can to speak out and act against the jihadists and authoritarian Muslim governments who are the true blasphemers of Islam of present times.