President Jimmy Carter is commonly listed as a failed chief executive, but his administration created a lasting legacy by making support for human rights a central tenet of U.S. foreign policy. In the three decades since Carter left the White House, no administration — Republican or Democratic — has felt free to disregard human rights issues in making major foreign policy decisions or in shaping U.S. relations with individual countries.
President Obama and Secretary of State Hillary Rodham Clinton have now laid the basis for a similar legacy by making support for LGBT rights a cornerstone of U.S. foreign policy. In a coordinated intercontinental media hit earlier this month [Dec. 6], Clinton delivered a powerful speech in support of LGBT rights worldwide to the United Nations Human Rights Council in Geneva, Switzerland, at the same time that Obama was issuing a presidential memorandum directing concrete steps for federal agencies to take to promote LGBT rights abroad.
Clinton’s espousal of LGBT rights came as the U.N. body was celebrating the sixty-third anniversary of the adoption of the Universal Declaration of Human Rights in 1948. She acknowledged that LGBT rights were on nobody’s radar screen at the time, but noted that over time the international charter has been expanded to encompass the rights of indigenous peoples, children, and people with disabilities. In like fashion, Clinton said, the charter’s guarantees extend to LGBT persons as well. “Gay rights are human rights,” she declared, “and human rights are gay rights.”
Clinton continued by cataloguing the many violations of those rights around the world. LGBT persons, she said, “are arrested, beaten, terrorized, even executed. Many are treated with contempt and violence by their fellow citizens while authorities empowered to protect them look the other way or, too often, even join in the abuse. They are denied opportunities to work and learn, driven from their homes and countries, and forced to suppress or deny who they are to protect themselves from harm.”
State Department aides were reportedly concerned enough about possible adverse reaction to the speech that they did not advertise its subject in advance, according to the New York Times account. Among the 47 countries represented in the U.N. Council are such LGBT rights violators as Saudi Arabia, where homosexuality is illegal and sometimes prosecuted, and Uganda, where a controversial bill calls for executing “repeat offenders.” Despite the aides’ concerns, the Times reported that no one walked out of the speech and Clinton received a standing ovation.
Clinton took pains to anticipate and refute the potential arguments against recognizing LGBT rights. Homosexuality is not an exclusively Western phenomenon, she said, as some in Africa and the Middle East contend. “Gay people are born into and belong to every society in the world,” Clinton said. Nor is gay rights a “luxury” that only the West can afford. In fact, Clinton said, failing to protect LGBT rights imposes costs, including lives of gay and straight people alike lost to disease and violence.
Most broadly, Clinton said that neither religion nor culture can justify denying LGBT persons the universal rights to equality and dignity. “No practice or tradition trumps the human rights that belong to all of us,” Clinton said. “And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing.”
As Clinton and the White House both emphasized, the United States was already on record in support of LGBT rights at the U.N. council. The U.S. provided critical support in June to a South African-sponsored resolution expressing concern about the violence and discrimination that people suffer because of their sexual orientation. The resolution, approved by a 23-19 vote, marked the U.N.’s first official recognition of LGBT rights. It asked for the U.N. High Commissioner on Human Rights to complete a study on by December on the extent of discriminatory laws and practices worldwide.
The mammoth report, released Dec. 15, confirmed the incidence of homophobic and transphobic violence and discrimination around the world. Violence against LGBT persons “tends to be especially vicious compared to other bias-motivated crimes,” the report noted.
Around the world, same-sex conduct remains illegal in 76 countries, according to the report, including five that provide the death penalty for homosexual activity. On the other hand, the report noted encouragingly that 30 countries have decriminalized same-sex conduct in recent years. That list includes the United States, where the Supreme Court ruled anti-sodomy laws unconstitutional in 2003.
In Washington, the White House said the State Department and other agencies were being directed to combat the criminalization of LGBT status or conduct and to protect vulnerable LGBT refugees and asylum seekers. The White House also called for leveraging U.S. foreign aid to support LGBT rights. As a small step toward that end, the State Department committed $3 million to a planned public-private fund to support LGBT rights organizations abroad.
The U.S. initiatives cannot guarantee LGBT rights progress overnight. But documenting LGBT rights violations in U.S. and U.N. reporting over time will keep these issues on the international agenda. And despite the continuing political divisions in the United States, future administrations — Republican or Democratic — may find that the Obama administration has set a course on LGBT rights that cannot be reversed or ignored.
Monday, December 19, 2011
Monday, December 12, 2011
Republicans Call Off Truce on Judicial Nominees
Hypocrisy was aptly defined by the French essayist La Rochefoucauld as the homage that vice renders to virtue. Twice last week, Senate Republicans hypocritically paid homage to the principle of executive branch authority by blocking nominations by President Obama to an important federal court and a new consumer protection agency.
The GOP’s hypocrisy was especially blatant in denying an up-or-down vote to Caitlin Halligan, Obama’s choice to fill one of three existing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. Back when a Republican was in the White House, GOP senators were aghast that Democrats, then in the minority, were blocking votes on President Bush’s nominees for federal judgeships.
Feelings ran so high that the then Senate majority leader, Tennessee’s Bill Frist, threatened to rule filibusters out of order, an action so antithetical to Senate traditions that it was labeled “the nuclear option.” Senatorial peace was restored only after a bipartisan group of seven Democrats and seven Republicans — the so-called Gang of 14 — pledged, in writing, not to support filibusters of judicial nominees in the future except in the event of “extraordinary circumstances.”
The agreement paved the way for confirmation of three of Bush’s nominees for federal appeals courts: Janice Rogers Brown, Priscilla Owens, and William Pryor. Each gained confirmation by votes that fell short of the 60 that would have been needed to cut off debate. But the Democrats’ forbearance then has not been returned in kind now that they hold power in the Senate and Republicans are in the minority.
Earlier this year, Senate Republicans succeeded in blocking a vote on Obama’s nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu, a rising academic star with unabashedly progressive views, would have become the only Asian American on a court with jurisdiction over Hawaii, California and other states with substantial Asian American populations. The vote to cut off debate was 52-43, strictly along party lines with one Republican (Utah’s Orrin Hatch) voting present and one GOP senator absent (Alaska’s Lisa Murkowski).
Senators divided almost the same way in the 54-45 vote on Tuesday (Dec. 6) to try to cut off debate on Halligan’s nomination to the D.C. Circuit. Only Murkowski broke ranks to vote with 53 Democrats in favor of allowing Halligan’s nomination to come to a vote. Hatch again voted present. In both votes, all four of the Gang of 14 Republicans still serving in the Senate voted to support the filibusters despite their previous commitments: Arizona’s John McCain, South Carolina’s Lindsey Graham and Maine’s Susan Collins and Olympia Snowe.
Ian Milhiser of the liberal group Center for American Progress underscored the Republicans’ hypocrisy by pulling up back-then quotes from Graham and 13 other GOP senators who voted to support the filibuster against Halligan despite their principled opposition to the practice earlier. One of the best examples came from Tennessee’s Lamar Alexander: “I would never filibuster any president’s judicial nominee. Period.” Kentucky’s Mitch McConnell, now the Senate minority leader, said back then that allowing filibusters against judicial nominees would amount to amending the Constitution to require a supermajority vote for confirmation.
The case against Halligan fell far short of whatever meaning could reasonably be given to the admittedly ambiguous phrase “extraordinary circumstances.” Halligan was criticized primarily for her role, while solicitor general for the state of New York, in supporting a lawsuit seeking to hold gun manufacturers liable for gun homicides and street crime. The second count against her consisted of a brief she filed in behalf of a Guantanamo detainee challenging the president’s power to detain suspected terrorists without full judicial review.
As a make-weight, Graham and some other Republicans said the D.C. Circuit’s caseload does not require filling any of the existing three vacancies. Graham pointedly noted that Democrats made the same argument in opposing Bush’s nominees for the D.C. Circuit. Whatever the caseload figures may be, the Republicans’ stance clearly has more to do with political payback than judicial administration.
Just two days after Halligan’s nomination was buried, Senate Republicans followed by thwarting a vote on Obama’s nomination of Robert Cordray to head the new Consumer Financial Protection Bureau. The 53-45 vote to cut off debate, seven short of the 60 votes needed, again was almost completely along party lines, with only one GOP senator — Massachusetts’ Scott Brown — breaking ranks and Maine’s Olympia Snowe voting present.
Without contesting Cordray’s qualifications, Republicans have vowed to oppose any nominee for the new agency without substantial changes to the new law that created it in the wake of the financial crisis. Democrats counter that Republicans should not hold the agency’s leadership hostage to legislative changes that they lack the votes to enact.
Judicial politics has been a hardball game now for three decades, ever since President Ronald Reagan began selecting nominees recruited by conservative activists precisely for their conservative views. To Republicans, the Estrada filibuster raised the stakes by blocking a vote for the first time on a nominee with clear majority support in the chamber. When the Gang of 14 produced their agreement to abjure filibusters in the future, Hatch presciently described the accord as a truce, but not a ceasefire. With the Liu and Halligan nominations, Republicans apparently have signaled that the truce is called off.
The GOP’s hypocrisy was especially blatant in denying an up-or-down vote to Caitlin Halligan, Obama’s choice to fill one of three existing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. Back when a Republican was in the White House, GOP senators were aghast that Democrats, then in the minority, were blocking votes on President Bush’s nominees for federal judgeships.
Feelings ran so high that the then Senate majority leader, Tennessee’s Bill Frist, threatened to rule filibusters out of order, an action so antithetical to Senate traditions that it was labeled “the nuclear option.” Senatorial peace was restored only after a bipartisan group of seven Democrats and seven Republicans — the so-called Gang of 14 — pledged, in writing, not to support filibusters of judicial nominees in the future except in the event of “extraordinary circumstances.”
The agreement paved the way for confirmation of three of Bush’s nominees for federal appeals courts: Janice Rogers Brown, Priscilla Owens, and William Pryor. Each gained confirmation by votes that fell short of the 60 that would have been needed to cut off debate. But the Democrats’ forbearance then has not been returned in kind now that they hold power in the Senate and Republicans are in the minority.
Earlier this year, Senate Republicans succeeded in blocking a vote on Obama’s nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu, a rising academic star with unabashedly progressive views, would have become the only Asian American on a court with jurisdiction over Hawaii, California and other states with substantial Asian American populations. The vote to cut off debate was 52-43, strictly along party lines with one Republican (Utah’s Orrin Hatch) voting present and one GOP senator absent (Alaska’s Lisa Murkowski).
Senators divided almost the same way in the 54-45 vote on Tuesday (Dec. 6) to try to cut off debate on Halligan’s nomination to the D.C. Circuit. Only Murkowski broke ranks to vote with 53 Democrats in favor of allowing Halligan’s nomination to come to a vote. Hatch again voted present. In both votes, all four of the Gang of 14 Republicans still serving in the Senate voted to support the filibusters despite their previous commitments: Arizona’s John McCain, South Carolina’s Lindsey Graham and Maine’s Susan Collins and Olympia Snowe.
Ian Milhiser of the liberal group Center for American Progress underscored the Republicans’ hypocrisy by pulling up back-then quotes from Graham and 13 other GOP senators who voted to support the filibuster against Halligan despite their principled opposition to the practice earlier. One of the best examples came from Tennessee’s Lamar Alexander: “I would never filibuster any president’s judicial nominee. Period.” Kentucky’s Mitch McConnell, now the Senate minority leader, said back then that allowing filibusters against judicial nominees would amount to amending the Constitution to require a supermajority vote for confirmation.
The case against Halligan fell far short of whatever meaning could reasonably be given to the admittedly ambiguous phrase “extraordinary circumstances.” Halligan was criticized primarily for her role, while solicitor general for the state of New York, in supporting a lawsuit seeking to hold gun manufacturers liable for gun homicides and street crime. The second count against her consisted of a brief she filed in behalf of a Guantanamo detainee challenging the president’s power to detain suspected terrorists without full judicial review.
As a make-weight, Graham and some other Republicans said the D.C. Circuit’s caseload does not require filling any of the existing three vacancies. Graham pointedly noted that Democrats made the same argument in opposing Bush’s nominees for the D.C. Circuit. Whatever the caseload figures may be, the Republicans’ stance clearly has more to do with political payback than judicial administration.
Just two days after Halligan’s nomination was buried, Senate Republicans followed by thwarting a vote on Obama’s nomination of Robert Cordray to head the new Consumer Financial Protection Bureau. The 53-45 vote to cut off debate, seven short of the 60 votes needed, again was almost completely along party lines, with only one GOP senator — Massachusetts’ Scott Brown — breaking ranks and Maine’s Olympia Snowe voting present.
Without contesting Cordray’s qualifications, Republicans have vowed to oppose any nominee for the new agency without substantial changes to the new law that created it in the wake of the financial crisis. Democrats counter that Republicans should not hold the agency’s leadership hostage to legislative changes that they lack the votes to enact.
Judicial politics has been a hardball game now for three decades, ever since President Ronald Reagan began selecting nominees recruited by conservative activists precisely for their conservative views. To Republicans, the Estrada filibuster raised the stakes by blocking a vote for the first time on a nominee with clear majority support in the chamber. When the Gang of 14 produced their agreement to abjure filibusters in the future, Hatch presciently described the accord as a truce, but not a ceasefire. With the Liu and Halligan nominations, Republicans apparently have signaled that the truce is called off.
Monday, December 5, 2011
Meddlesome Congress Is No Help on War on Terror Cases
The Senate made a gallant effort last week to justify its former reputation as the world’s greatest deliberative body as it tried to define the government’s authority to detain suspected terrorists. The week began with a bipartisan compromise fashioned by two senators with experience generally taking the high road on the issues and ended on Dec. 1 with a thorough, and well-reasoned, floor debate.
Despite those indicia of legislative statesmanship, the detention provisions included in the National Defense Authorization Act represent a step backward in the United States’ war against al Qaeda. Once again, Congress wants to micromanage the Obama administration’s enforcement tactics against al Qaeda members by limiting prosecutions in federal courts in favor of trials in the still unproven system of military commissions. In addition, the Senate majority apparently hopes courts will allow use of military-style detention and interrogation against suspected terrorists even if they are U.S. citizens arrested within the United States.
True, the two sections at issue could have been worse. In section 1032, the bill supposedly mandates military detention for persons “determined to be part of al Qaeda or associated forces” who “have participated in a planned or actual attack or attempted attack on the United States or its coalition partners.” But it allows the administration to waive that requirement if it shows that a waiver would best serve the interest of national security.
The mandatory military detention provision would not apply to U.S. citizens or lawful permanent residents. But in section 1031, the bill leaves unclear whether the general authority to detain suspected members of al Qaeda, the Taliban, or associated forces applies to U.S. citizens. An earlier version had been written to apply to U.S. citizens unless prohibited by the Constitution.
In fashioning the compromise, Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., chairman and ranking member respectively of the Armed Services Committee, said it was designed to leave the law on the issue unchanged. In effect, that would leave as the last word on the subject the Supreme Court’s somewhat cryptic decision in Hamdi v. Rumsfeld (2004). That ruling allowed military detention of a U.S. citizen captured abroad but left unanswered the question of military detention for a citizen arrested within the United States.
In Senate debate last week, California Democrat Dianne Feinstein, who chairs the Senate Intelligence Committee, passionately argued against allowing indefinite military detention of U.S. citizens. “This country is special because we have certain values, and due process of law is one of those values,” Feinstein said. “So I object. I object to holding American citizens without trial.”
From the opposite side, South Carolina Republican Lindsey Graham, a former military lawyer, argued with equal force in favor of allowing military detention for U.S. citizens: “I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril,” Graham said. “You can get killed in the process. You can get detained indefinitely.”
Feinstein’s amendment failed on a mostly party-line 45-55 vote. Three Republicans voted in favor: Illinois moderate Mark Kirk and the libertarian-minded Mike Lee of Utah and Rand Paul of Kentucky. But the amendment fell short because 10 Democrats joined 45 Republicans in opposing it.
Feinstein succeeded, however, with a second amendment that makes explicit that the provision has no effect on existing authority to detain U.S. citizens. Adopted with only one dissenting vote, the amendment effectively leaves it to the courts to answer the question left unresolved in Hamdi. In debate, Feinstein said both Levin and McCain had promised to defend that version of the legislation in conference with the House.
The House version of the defense authorization bill is more stringent in several respects, including in its provision to require military commission trials for all suspected terrorists. The House version also would bar transferring suspected terrorists captured abroad into the United States and make it harder for the administration to transfer any of the current Guantanamo detainees to other countries. The Senate’s bill generally leaves those issues untouched.
The preference in both chambers for military over civilian trials for suspected terrorists elevates ideological posturing over fact-based decision-making. As Feinstein and others pointed out, the government has successfully prosecuted hundreds of suspected terrorists since 9/11, under presidents of both parties: Republican George W. Bush and Democrat Barack Obama. That list extends from “shoe bomber” Richard Reid, serving a life sentence for his foiled aircraft bomb attempt in December 2001, to Faisal Shahzad, also serving a life sentence for his attempted Times Square bombing in May 2010.
Major administration officials, including Defense Secretary Leon Panetta, CIA Director David Petraeus, and FBI Director Robert Mueller, argued against those provisions as the bills moved through the House and Senate. After the Senate action, White House officials raised the possibility of a veto.
The administration gave way earlier this year, however, when Congress prohibited bringing any Guantanamo detainees to the United States for trial in civilian courts. The result has been to slow the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. Facts and logic notwithstanding, Obama may well find he has little choice again if Congress insists on dictating where best to prosecute suspected al Qaeda members.
Despite those indicia of legislative statesmanship, the detention provisions included in the National Defense Authorization Act represent a step backward in the United States’ war against al Qaeda. Once again, Congress wants to micromanage the Obama administration’s enforcement tactics against al Qaeda members by limiting prosecutions in federal courts in favor of trials in the still unproven system of military commissions. In addition, the Senate majority apparently hopes courts will allow use of military-style detention and interrogation against suspected terrorists even if they are U.S. citizens arrested within the United States.
True, the two sections at issue could have been worse. In section 1032, the bill supposedly mandates military detention for persons “determined to be part of al Qaeda or associated forces” who “have participated in a planned or actual attack or attempted attack on the United States or its coalition partners.” But it allows the administration to waive that requirement if it shows that a waiver would best serve the interest of national security.
The mandatory military detention provision would not apply to U.S. citizens or lawful permanent residents. But in section 1031, the bill leaves unclear whether the general authority to detain suspected members of al Qaeda, the Taliban, or associated forces applies to U.S. citizens. An earlier version had been written to apply to U.S. citizens unless prohibited by the Constitution.
In fashioning the compromise, Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., chairman and ranking member respectively of the Armed Services Committee, said it was designed to leave the law on the issue unchanged. In effect, that would leave as the last word on the subject the Supreme Court’s somewhat cryptic decision in Hamdi v. Rumsfeld (2004). That ruling allowed military detention of a U.S. citizen captured abroad but left unanswered the question of military detention for a citizen arrested within the United States.
In Senate debate last week, California Democrat Dianne Feinstein, who chairs the Senate Intelligence Committee, passionately argued against allowing indefinite military detention of U.S. citizens. “This country is special because we have certain values, and due process of law is one of those values,” Feinstein said. “So I object. I object to holding American citizens without trial.”
From the opposite side, South Carolina Republican Lindsey Graham, a former military lawyer, argued with equal force in favor of allowing military detention for U.S. citizens: “I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril,” Graham said. “You can get killed in the process. You can get detained indefinitely.”
Feinstein’s amendment failed on a mostly party-line 45-55 vote. Three Republicans voted in favor: Illinois moderate Mark Kirk and the libertarian-minded Mike Lee of Utah and Rand Paul of Kentucky. But the amendment fell short because 10 Democrats joined 45 Republicans in opposing it.
Feinstein succeeded, however, with a second amendment that makes explicit that the provision has no effect on existing authority to detain U.S. citizens. Adopted with only one dissenting vote, the amendment effectively leaves it to the courts to answer the question left unresolved in Hamdi. In debate, Feinstein said both Levin and McCain had promised to defend that version of the legislation in conference with the House.
The House version of the defense authorization bill is more stringent in several respects, including in its provision to require military commission trials for all suspected terrorists. The House version also would bar transferring suspected terrorists captured abroad into the United States and make it harder for the administration to transfer any of the current Guantanamo detainees to other countries. The Senate’s bill generally leaves those issues untouched.
The preference in both chambers for military over civilian trials for suspected terrorists elevates ideological posturing over fact-based decision-making. As Feinstein and others pointed out, the government has successfully prosecuted hundreds of suspected terrorists since 9/11, under presidents of both parties: Republican George W. Bush and Democrat Barack Obama. That list extends from “shoe bomber” Richard Reid, serving a life sentence for his foiled aircraft bomb attempt in December 2001, to Faisal Shahzad, also serving a life sentence for his attempted Times Square bombing in May 2010.
Major administration officials, including Defense Secretary Leon Panetta, CIA Director David Petraeus, and FBI Director Robert Mueller, argued against those provisions as the bills moved through the House and Senate. After the Senate action, White House officials raised the possibility of a veto.
The administration gave way earlier this year, however, when Congress prohibited bringing any Guantanamo detainees to the United States for trial in civilian courts. The result has been to slow the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. Facts and logic notwithstanding, Obama may well find he has little choice again if Congress insists on dictating where best to prosecute suspected al Qaeda members.
Monday, November 14, 2011
Government's Orwellian Defense of GPS Tracking
Chief Justice John G. Roberts Jr. had a simple, direct question for the government lawyer defending the right of police to use a GPS device to track a suspect’s automobile for as long as a month without a search warrant. The government’s answer, after a moment of hesitation and a cloud of legalese, was at bottom also simple and direct — and scary in the extreme.
Michael Dreeben, deputy solicitor general and the office’s senior specialist on criminal law, had started his Nov. 8 argument in United States v. Jones by contending that individuals have no expectation of privacy in their public movements. A GPS device, he insisted, does nothing more than Supreme Court’s decisions already permit police to do through human surveillance.
Roberts was skeptical. Human surveillance requires a lot of work, but with the GPS police “just sit back in the station and they push a button whenever they want to find out where the car is,” he said. “That seems to me dramatically different.”
Could police “put a GPS device on all of our cars, monitor our movements for a month?” Roberts asked later. “You think you’re entitled to do that under your theory?”
Dreeben, with more than 80 Supreme Court arguments under his belt, appeared to be taken aback. “The justices of this court?” he asked. After Roberts said yes — provoking laughter in the courtroom — Dreeben realized he had no choice but to stick to his argument.
Avoiding a direct yes or no answer, Dreeben replied that justices have no greater expectation of privacy on the public roadway than anyone else. “No problem under the Constitution?” the chief justice asked again, seemingly unconvinced.
Roberts was not the only justice to be troubled. By the end of Dreeben’s argument and later rebuttal, every justice except Clarence Thomas — maintaining his customary silence — had joined in raising concerns about the implications of the government’s position.
Could police put a GPS device surreptitiously on a person’s sport coat or overcoat, Justice Anthony M. Kennedy asked. Dreeben tried to deflect the question by saying the device could then track a suspect into the home, a privacy-protected sphere. Justice Ruth Bader Ginsburg picked up the thread. “Any of us could be monitored whenever we leave our homes,” she said. “So the only thing secure is the home.”
Justice Samuel A. Alito Jr. picked up Roberts’ point about changing technology. “How do we deal with this?” he asked. “Do we just say, well, nothing is changed?” When Dreeben clung to his position, Justice Stephen G. Breyer joined in to raise the Orwellian implications of the government’s view. “If you win, you suddenly produce what sounds like 1984 from their brief,” he said referring to defendant Antoine Jones. “I understand they have an interest in perhaps dramatizing that, but maybe overly. But it still sounds like it.”
Later, Justice Sonia Sotomayor teased out Altio’s suggestion that in time technology would allow government monitoring even without what Dreeben had acknowledged to Justice Antonin Scalia amounted to a “technical trespass” of placing a device on a car or on the person. “Under your theory,” Sotomayor told Dreeben, “you could monitor and track every person through their cell phone, because today the smart phones emit signals that police can pick up and use to follow someone anywhere they go.”
By the time of Dreeben’s rebuttal, Justice Elena Kagan was troubled too, pouncing on his suggestion that with changes in technology people’s expectations of privacy also change. “That seems too much to me,” Kagan said, envisioning a “robotic device” that could track and report to police one’s movements 24 hours a day. “The notion that we don’t have an expectation of privacy in that . . . .,” Kagan said, “I’m not sure how one can say that.”
The government was forced to defend an extreme position in the case because of a police foul-up of sorts. Police in fact had obtained a search warrant for the GPS device to drug suspect Antoine Jones’ car, but the warrant required it to be installed within 10 days and within the District of Columbia. Instead, police attached the device 11 days later when the car was parked in Maryland — effectively nullifying the warrant. The GPS tracking helped police follow Jones to a drug dropoff point, resulting in his conviction.
The district court judge found no problem with the evidence, but the U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by conservative judge Douglas Ginsburg, ruled the GPS tracking amounted to an unreasonable search under the Fourth Amendment. In seeking to reinstate Jones’ conviction, the government had to defend the surveillance as warrantless. But in a fall-back position, the government argued that GPS surveillance be permitted as long as there was “reasonable suspicion” to justify the search, less than the customary probable cause requirement.
By argument’s end, the court’s path to a decision was unclear, with justices apparently divided whether to ground a ruling on the trespass issue or to confront the broader privacy questions. Dreeben suggested the justices’ concerns about an Orwellian future could be addressed to Congress, but Jones’ attorney, Stephen Leckar, suggested there were “535 reasons” why that would not be a good idea.
The decision is due by the end of June.
Michael Dreeben, deputy solicitor general and the office’s senior specialist on criminal law, had started his Nov. 8 argument in United States v. Jones by contending that individuals have no expectation of privacy in their public movements. A GPS device, he insisted, does nothing more than Supreme Court’s decisions already permit police to do through human surveillance.
Roberts was skeptical. Human surveillance requires a lot of work, but with the GPS police “just sit back in the station and they push a button whenever they want to find out where the car is,” he said. “That seems to me dramatically different.”
Could police “put a GPS device on all of our cars, monitor our movements for a month?” Roberts asked later. “You think you’re entitled to do that under your theory?”
Dreeben, with more than 80 Supreme Court arguments under his belt, appeared to be taken aback. “The justices of this court?” he asked. After Roberts said yes — provoking laughter in the courtroom — Dreeben realized he had no choice but to stick to his argument.
Avoiding a direct yes or no answer, Dreeben replied that justices have no greater expectation of privacy on the public roadway than anyone else. “No problem under the Constitution?” the chief justice asked again, seemingly unconvinced.
Roberts was not the only justice to be troubled. By the end of Dreeben’s argument and later rebuttal, every justice except Clarence Thomas — maintaining his customary silence — had joined in raising concerns about the implications of the government’s position.
Could police put a GPS device surreptitiously on a person’s sport coat or overcoat, Justice Anthony M. Kennedy asked. Dreeben tried to deflect the question by saying the device could then track a suspect into the home, a privacy-protected sphere. Justice Ruth Bader Ginsburg picked up the thread. “Any of us could be monitored whenever we leave our homes,” she said. “So the only thing secure is the home.”
Justice Samuel A. Alito Jr. picked up Roberts’ point about changing technology. “How do we deal with this?” he asked. “Do we just say, well, nothing is changed?” When Dreeben clung to his position, Justice Stephen G. Breyer joined in to raise the Orwellian implications of the government’s view. “If you win, you suddenly produce what sounds like 1984 from their brief,” he said referring to defendant Antoine Jones. “I understand they have an interest in perhaps dramatizing that, but maybe overly. But it still sounds like it.”
Later, Justice Sonia Sotomayor teased out Altio’s suggestion that in time technology would allow government monitoring even without what Dreeben had acknowledged to Justice Antonin Scalia amounted to a “technical trespass” of placing a device on a car or on the person. “Under your theory,” Sotomayor told Dreeben, “you could monitor and track every person through their cell phone, because today the smart phones emit signals that police can pick up and use to follow someone anywhere they go.”
By the time of Dreeben’s rebuttal, Justice Elena Kagan was troubled too, pouncing on his suggestion that with changes in technology people’s expectations of privacy also change. “That seems too much to me,” Kagan said, envisioning a “robotic device” that could track and report to police one’s movements 24 hours a day. “The notion that we don’t have an expectation of privacy in that . . . .,” Kagan said, “I’m not sure how one can say that.”
The government was forced to defend an extreme position in the case because of a police foul-up of sorts. Police in fact had obtained a search warrant for the GPS device to drug suspect Antoine Jones’ car, but the warrant required it to be installed within 10 days and within the District of Columbia. Instead, police attached the device 11 days later when the car was parked in Maryland — effectively nullifying the warrant. The GPS tracking helped police follow Jones to a drug dropoff point, resulting in his conviction.
The district court judge found no problem with the evidence, but the U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by conservative judge Douglas Ginsburg, ruled the GPS tracking amounted to an unreasonable search under the Fourth Amendment. In seeking to reinstate Jones’ conviction, the government had to defend the surveillance as warrantless. But in a fall-back position, the government argued that GPS surveillance be permitted as long as there was “reasonable suspicion” to justify the search, less than the customary probable cause requirement.
By argument’s end, the court’s path to a decision was unclear, with justices apparently divided whether to ground a ruling on the trespass issue or to confront the broader privacy questions. Dreeben suggested the justices’ concerns about an Orwellian future could be addressed to Congress, but Jones’ attorney, Stephen Leckar, suggested there were “535 reasons” why that would not be a good idea.
The decision is due by the end of June.
Monday, October 31, 2011
Justice Thomas's Two Decades of Rejecting Precedents
As a Supreme Court nominee, Clarence Thomas presented himself as a cautious jurist committed to judicial restraint. “I have no agenda to change existing case law,” Thomas told a Republican senator during his confirmation hearing after being asked about his critical views about school desegregation. “That’s not my predisposition. It's not the way that I approach my job.”
In his 20 years on the bench, however, Thomas has been a judicial activist of the first rank, a veritable bull in a china shop of Supreme Court precedents. More than any justice in recent memory — perhaps more than any justice in history — Thomas has time and again called for overruling prior decisions, some of them of recent vintage and some dating back decades or even centuries.
Thomas was a brand-new Supreme Court justice in fall 1991 when he first met a precedent that he did not like. In Hudson v. McMillian (1992), a case argued in November 1991 in Thomas’s second week of oral arguments, Thomas contended in dissent that the Eighth Amendment’s Cruel and Unusual Punishment Clause should not apply to a prison guard’s deliberate beating of an inmate. For the majority, Justice Sandra Day O’Connor said that Thomas’s dissent ignored a “settled rule” dating to 1977 that “unnecessary and wanton infliction of pain” violates the Eighth Amendment.
Thomas originally cast a lone dissenting vote in the case in the justices’ conference, though fellow conservative Antonin Scalia later joined his opinion. (In her book Supreme Conflict, the conservative-leaning reporter Jan Crawford Greenburg, then with ABC News and now with CBS, cites that sequence to refute the notion that Thomas in his early years simply followed Scalia’s positions.) In at least three dozen cases since then, however, Thomas has been all by himself in calling to overturn precedents.
A compilation in 2004 by Jason Rylander, a lawyer then with the progressive group Community Rights Counsel, lists 35 cases in which Thomas argued alone either in concurring or dissenting opinions for reconsidering settled precedents. The list begins with Thomas’s questioning in Georgia v. McCollum (1992) of the rule established a year earlier that private litigants cannot use peremptory challenges to exclude potential jurors on the basis of race.
Rylander, now with Defenders of Wildlife, ended his list in 2004, a year in which Thomas argued in half a dozen cases for rethinking past decisions. In one of those, Elk Grove Unified School District v. Newdow, Thomas took the startling position that the Establishment Clause, the central pillar of the separation of church and state, should apply only to the federal government, not to the states. In another, Sabri v. United States, Thomas argued for reconsidering decisions broadly interpreting Congress’s powers under both the Commerce Clause and the Necessary and Proper Clause.
Had Rylander continued the compilation, he could have added at least two more from the past two terms. In Citizens United v. FEC (2010), Thomas argued in a lone dissent for scrapping campaign-finance precedents that uphold mandatory disclosure of campaign contributions. And just this year, in Brown v. Entertainment Merchants Association (2011), Thomas argued in dissent that minors have no independent First Amendment right of access to speech that the government wants to censor. That approach would be at odds with the court’s landmark student-speech ruling in Tinker v. Des Moines Unified School District. Writing the majority opinion in the case, Scalia noted that Thomas cited no case in support of his view.
Thomas is not always alone in his penchant for breaking precedent. In his first term, he joined three others, including Chief Justice William H. Rehnquist, in a dissenting opinion that called for a “re-examination” of the landmark abortion rights ruling Roe v. Wade. Thomas had studiously avoided all questions on abortion during the confirmation hearing. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), he joined a plurality opinion by Chief Justice John G. Roberts Jr. that undercut the line of school desegregation decisions that Thomas had earlier appeared to accept.
Precedents are not sacrosanct. The court itself has stated that the principle of stare decisis — respect for precedent — "is not an inviolable command.” Some of the court’s greatest moments have come in rejecting decisions that were wrong when decided or wrong when reconsidered. Think Brown v. Board of Education, Gideon v. Wainwright, and Lawrence v. Texas.
Thomas’s approach, however, sets him apart even from his fellow conservatives. In his confirmation hearing, Roberts acknowledged that overruling a precedent can be “a jolt to the legal system.” As chief justice, Roberts has stopped short at times of officially overruling prior decisions. Thomas is less hesitant. As Scalia remarked to Thomas’s biographer Ken Foskett, Thomas “doesn’t believe in stare decisis, period.
As he marks his twentieth anniversary on the court, controversy still rages whether Thomas or law professor Anita Hill was telling the truth about Hill’s accusations of sexual harassment. That controversy will likely remain unsettled. But Thomas’s record over two decades shows that he has not been the justice that he promised to be during confirmation hearings. His record may cheer conservatives, but others will see evidence that Thomas reached the court only after a calculated dissembling before the Senate about his approach to legal issues. That may be a reflection on the confirmation process, but it is also, and more to the point, a reflection on Thomas himself.
In his 20 years on the bench, however, Thomas has been a judicial activist of the first rank, a veritable bull in a china shop of Supreme Court precedents. More than any justice in recent memory — perhaps more than any justice in history — Thomas has time and again called for overruling prior decisions, some of them of recent vintage and some dating back decades or even centuries.
Thomas was a brand-new Supreme Court justice in fall 1991 when he first met a precedent that he did not like. In Hudson v. McMillian (1992), a case argued in November 1991 in Thomas’s second week of oral arguments, Thomas contended in dissent that the Eighth Amendment’s Cruel and Unusual Punishment Clause should not apply to a prison guard’s deliberate beating of an inmate. For the majority, Justice Sandra Day O’Connor said that Thomas’s dissent ignored a “settled rule” dating to 1977 that “unnecessary and wanton infliction of pain” violates the Eighth Amendment.
Thomas originally cast a lone dissenting vote in the case in the justices’ conference, though fellow conservative Antonin Scalia later joined his opinion. (In her book Supreme Conflict, the conservative-leaning reporter Jan Crawford Greenburg, then with ABC News and now with CBS, cites that sequence to refute the notion that Thomas in his early years simply followed Scalia’s positions.) In at least three dozen cases since then, however, Thomas has been all by himself in calling to overturn precedents.
A compilation in 2004 by Jason Rylander, a lawyer then with the progressive group Community Rights Counsel, lists 35 cases in which Thomas argued alone either in concurring or dissenting opinions for reconsidering settled precedents. The list begins with Thomas’s questioning in Georgia v. McCollum (1992) of the rule established a year earlier that private litigants cannot use peremptory challenges to exclude potential jurors on the basis of race.
Rylander, now with Defenders of Wildlife, ended his list in 2004, a year in which Thomas argued in half a dozen cases for rethinking past decisions. In one of those, Elk Grove Unified School District v. Newdow, Thomas took the startling position that the Establishment Clause, the central pillar of the separation of church and state, should apply only to the federal government, not to the states. In another, Sabri v. United States, Thomas argued for reconsidering decisions broadly interpreting Congress’s powers under both the Commerce Clause and the Necessary and Proper Clause.
Had Rylander continued the compilation, he could have added at least two more from the past two terms. In Citizens United v. FEC (2010), Thomas argued in a lone dissent for scrapping campaign-finance precedents that uphold mandatory disclosure of campaign contributions. And just this year, in Brown v. Entertainment Merchants Association (2011), Thomas argued in dissent that minors have no independent First Amendment right of access to speech that the government wants to censor. That approach would be at odds with the court’s landmark student-speech ruling in Tinker v. Des Moines Unified School District. Writing the majority opinion in the case, Scalia noted that Thomas cited no case in support of his view.
Thomas is not always alone in his penchant for breaking precedent. In his first term, he joined three others, including Chief Justice William H. Rehnquist, in a dissenting opinion that called for a “re-examination” of the landmark abortion rights ruling Roe v. Wade. Thomas had studiously avoided all questions on abortion during the confirmation hearing. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), he joined a plurality opinion by Chief Justice John G. Roberts Jr. that undercut the line of school desegregation decisions that Thomas had earlier appeared to accept.
Precedents are not sacrosanct. The court itself has stated that the principle of stare decisis — respect for precedent — "is not an inviolable command.” Some of the court’s greatest moments have come in rejecting decisions that were wrong when decided or wrong when reconsidered. Think Brown v. Board of Education, Gideon v. Wainwright, and Lawrence v. Texas.
Thomas’s approach, however, sets him apart even from his fellow conservatives. In his confirmation hearing, Roberts acknowledged that overruling a precedent can be “a jolt to the legal system.” As chief justice, Roberts has stopped short at times of officially overruling prior decisions. Thomas is less hesitant. As Scalia remarked to Thomas’s biographer Ken Foskett, Thomas “doesn’t believe in stare decisis, period.
As he marks his twentieth anniversary on the court, controversy still rages whether Thomas or law professor Anita Hill was telling the truth about Hill’s accusations of sexual harassment. That controversy will likely remain unsettled. But Thomas’s record over two decades shows that he has not been the justice that he promised to be during confirmation hearings. His record may cheer conservatives, but others will see evidence that Thomas reached the court only after a calculated dissembling before the Senate about his approach to legal issues. That may be a reflection on the confirmation process, but it is also, and more to the point, a reflection on Thomas himself.
Monday, October 24, 2011
On Health Care, Will Justices Defer to Congress?
Congress touched on some important First Amendment rights two decades ago when it passed a law requiring cable systems to carry the signals of all local broadcast stations. Cable systems argued that the government had no business telling them what to carry – arguments analogous to those heard today from the opponents of the individual health insurance mandate now being challenged before the Supreme Court.
Before passing the cable “must-carry” law, however, Congress also heard from broadcasters and public-interest advocates that free, over-the-air broadcasting could be imperiled if cable systems, with their effective monopoly power and competing financial interests, refused to carry local TV stations. Those arguments are analogous to the warnings from supporters of the Patient Protection and Affordable Care Act that the health care market will be distorted — and health insurance premiums driven up — unless all health care consumers have to pay through insurance for the medical care they will eventually receive.
The arguments over the cable law reached the Supreme Court in 1994 and again in 1997 in a constitutional challenge brought by the cable industry. In its first ruling, the court said the government needed to do a better job of justifying the law. On remand, a three-judge federal court in Washington conducted an extensive hearing recapping all of the testimony heard by Congress earlier and then upheld the law for a second time.
The Supreme Court followed suit, in a 5-4 decision written by Justice Anthony M. Kennedy. In the critical passage in Turner Broadcasting System v. FCC (1997), Kennedy said it was for Congress, not the court, to decide how to regulate national industries even when First Amendment rights were at stake. The court had to defer to Congress’s findings “as to the harm to be avoided and to the remedial measures adopted,” Kennedy wrote, “lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”
The Obama administration is making a blatant appeal for Kennedy’s vote in the pending challenges to the health care law by using that passage to close its most recent filing in the legal challenges before the high court. The government brief, filed on Tuesday (Oct. 18), came just one day after the 26 states challenging the law filed their brief in what appears likely to be the case that the Supreme Court will use to determine the constitutionality of the law.
The rapid-fire succession of briefs in the case originally known as Florida v. Sebelius attests to the desire of critics and the Obama administration alike for a prompt resolution of the constitutional issues. Some Republicans and conservative court watchers were speculating over the summer that the administration might try to drag out the appeals in the multiple pending challenges so as to avoid the risk of an adverse Supreme Court decision in a presidential election year.
The administration squelched that talk by filing its appeal in the Florida case — the only case the administration has lost so far — directly to the Supreme Court on Sept. 28 instead of asking for a rehearing before the full Eleventh U.S. Circuit Court of Appeals. The states — along with the National Federation of Independent Businesses, plaintiffs in a challenge consolidated with Florida’s — had filed their own appeals earlier that day. The administration wants to reverse the appeals court’s decision finding the individual mandate unconstitutional, while the challengers want to have the entire law thrown out – as the district court judge in Florida had ruled. The appeals court said the individual mandate could be severed from the law and the rest left on the books.
The latest filings also came well ahead of schedule: the states beat their deadline by 11 days, the government would have had 15 days to respond. The new filings would allow the justices to take up the case in early November, allowing oral arguments in March even if the court does not ask to expedite the case.
The court itself apparently recognizes the importance of the case. In an unusual but not unprecedented action, the court has established a separate web site page with links to docket information and briefs filed on all six of the pending petitions. In the other cases, the Sixth Circuit upheld the law, while the Fourth Circuit dismissed two challenges, in effect, as premature. Significantly, the administration is asking the court for a ruling on the merits without invoking traditional legal doctrines that could delay a decision.
The opposing arguments in the briefs from the states and the NFIB on the one hand and the government’s on the other are just like those that Congress and the president resolved in favor of the individual mandate. All four of the newest justices — Roberts, Alito, Sotomayor, and Kagan — swore in their confirmation hearings that they recognized the Supreme Court’s role as a limited one, requiring deference to the policy choices of the political branches. In Roberts’ famous formulation, the court calls balls and strikes, but the other branches make the rules.
The Turner Broadcasting Court, closely divided on legal doctrine like today’s, followed that approach in upholding the must-carry law. If the Roberts Court divides on the health-care law along conservative-liberal lines, as many are predicting, one can expect the government to remind Justice Kennedy several times how he voted in that case.
Before passing the cable “must-carry” law, however, Congress also heard from broadcasters and public-interest advocates that free, over-the-air broadcasting could be imperiled if cable systems, with their effective monopoly power and competing financial interests, refused to carry local TV stations. Those arguments are analogous to the warnings from supporters of the Patient Protection and Affordable Care Act that the health care market will be distorted — and health insurance premiums driven up — unless all health care consumers have to pay through insurance for the medical care they will eventually receive.
The arguments over the cable law reached the Supreme Court in 1994 and again in 1997 in a constitutional challenge brought by the cable industry. In its first ruling, the court said the government needed to do a better job of justifying the law. On remand, a three-judge federal court in Washington conducted an extensive hearing recapping all of the testimony heard by Congress earlier and then upheld the law for a second time.
The Supreme Court followed suit, in a 5-4 decision written by Justice Anthony M. Kennedy. In the critical passage in Turner Broadcasting System v. FCC (1997), Kennedy said it was for Congress, not the court, to decide how to regulate national industries even when First Amendment rights were at stake. The court had to defer to Congress’s findings “as to the harm to be avoided and to the remedial measures adopted,” Kennedy wrote, “lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”
The Obama administration is making a blatant appeal for Kennedy’s vote in the pending challenges to the health care law by using that passage to close its most recent filing in the legal challenges before the high court. The government brief, filed on Tuesday (Oct. 18), came just one day after the 26 states challenging the law filed their brief in what appears likely to be the case that the Supreme Court will use to determine the constitutionality of the law.
The rapid-fire succession of briefs in the case originally known as Florida v. Sebelius attests to the desire of critics and the Obama administration alike for a prompt resolution of the constitutional issues. Some Republicans and conservative court watchers were speculating over the summer that the administration might try to drag out the appeals in the multiple pending challenges so as to avoid the risk of an adverse Supreme Court decision in a presidential election year.
The administration squelched that talk by filing its appeal in the Florida case — the only case the administration has lost so far — directly to the Supreme Court on Sept. 28 instead of asking for a rehearing before the full Eleventh U.S. Circuit Court of Appeals. The states — along with the National Federation of Independent Businesses, plaintiffs in a challenge consolidated with Florida’s — had filed their own appeals earlier that day. The administration wants to reverse the appeals court’s decision finding the individual mandate unconstitutional, while the challengers want to have the entire law thrown out – as the district court judge in Florida had ruled. The appeals court said the individual mandate could be severed from the law and the rest left on the books.
The latest filings also came well ahead of schedule: the states beat their deadline by 11 days, the government would have had 15 days to respond. The new filings would allow the justices to take up the case in early November, allowing oral arguments in March even if the court does not ask to expedite the case.
The court itself apparently recognizes the importance of the case. In an unusual but not unprecedented action, the court has established a separate web site page with links to docket information and briefs filed on all six of the pending petitions. In the other cases, the Sixth Circuit upheld the law, while the Fourth Circuit dismissed two challenges, in effect, as premature. Significantly, the administration is asking the court for a ruling on the merits without invoking traditional legal doctrines that could delay a decision.
The opposing arguments in the briefs from the states and the NFIB on the one hand and the government’s on the other are just like those that Congress and the president resolved in favor of the individual mandate. All four of the newest justices — Roberts, Alito, Sotomayor, and Kagan — swore in their confirmation hearings that they recognized the Supreme Court’s role as a limited one, requiring deference to the policy choices of the political branches. In Roberts’ famous formulation, the court calls balls and strikes, but the other branches make the rules.
The Turner Broadcasting Court, closely divided on legal doctrine like today’s, followed that approach in upholding the must-carry law. If the Roberts Court divides on the health-care law along conservative-liberal lines, as many are predicting, one can expect the government to remind Justice Kennedy several times how he voted in that case.
Monday, October 17, 2011
Frank Kameny, Civil Rights Hero, 1925-2011
For all their undoubted bravery, the men and women who waged the battle for civil rights for black Americans in the 1950s and ’60s were not alone in their struggles. They had behind them and on their side black civil rights organizations, black churches, some white liberals in churches and synagogues, some sympathetic coverage in the news media, and, as early as Brown v. Board of Education, the federal government.
Frank Kameny, who died last week (Oct. 11) at the age of 86, had virtually no one behind him or on his side when he began fighting for civil rights for gay Americans like himself in the late 1950s. Back then, homosexuals were all but alone, deemed either immoral or mentally ill or both, presumed unfit for government service, politically powerless, and invisible in information or entertainment media.
Kameny did as much as to change that, probably more, than any other single person. Speakers at a program last week sponsored by the Rainbow History Project of Washington, D.C., rightly remembered him as having laid the philosophical basis for the gay rights movement. Kameny led the legal fight to remove homosexuality as the basis for disqualification from working for the federal government. He led the successful effort to get the American Psychiatric Association to stop classifying homosexuality as a mental illness. And he coined the phrase, “Gay is good,” which over time gave gays and lesbians self-esteem and self-confidence and eventually helped change society’s views of homosexuality as well.
Kameny, a World War II veteran and Harvard-trained astronomer, started the fight out of necessity after having been fired from his job as an astronomer with the U.S. Army’s Map Service. (It is commonly reported that Kameny was arrested for cruising in Washington's Lafayette Park, but in his later appeal Kameny attributed his dismissal to his truthful disclosure on an employment form of a prior arrest in San Francisco on a baseless charge that was later expunged.) He fought his dismissal all the way to the U.S. Supreme Court, representing himself — on his own — in a strongly argued plea that his personal life had nothing to do with his government service. The justices refused to hear the case. (The 1961 petition is available here, as part of the Rainbow History Project’s Frank Kameny pages.)
In the same year, Kameny founded one of the first gay rights organizations, the Mattachine Society of Washington. There were other organizations of the same name founded in the 1950s in Los Angeles and San Francisco. (Mattacino was a character in Italian theater, a court jester of sorts.) The Washington organization was independent, however, both in form and spirit. Unlike the California organizations, Kameny resolved to be as public as possible in advocating for the rights of gays and lesbians.
It was in that spirit that Kameny led the first gay rights picketing in front of the White House on April 17, 1965 — four years before the raid on the Stonewall bar in New York City that is often treated as the beginning of the gay rights movement. The demonstration drew no news coverage except a brief mention in Washington’s Afro American newspaper, but the placards that Kameny and his dozen or so allies carried have now been turned over along with Kameny’s papers to the Library of Congress. Six years later, in 1971, Kameny ran for the District of Columbia’s non-voting seat in the House of Representatives. He was the first openly gay person to seek federal office in the United States.
Kameny was equally bold in challenging the psychiatric establishment to remove homosexuality from its authoritative Diagnostic and Statistical Manual of Mental Disorders (the so-called DSM). As speakers at the Rainbow History program recalled, Kameny led a small band of gay guerrillas into the APA’s annual meeting at a Washington, D.C., hotel, stormed the stage, and lectured the startled psychiatrists that they were all wrong about homosexuality.
Along with public advocacy, Kameny and the Mattachine Society also functioned as a self-help organization for gays and lesbians. A friend recalled to me having called the group’s hot line for medical advice after having his first same-sex experience. The society published a pamphlet with advice about what to do if arrested on sex-related charges. And Kameny provided his apartment as a way station for visiting gay activists.
The APA delisted homosexuality in 1973. Two years later, the U.S. Civil Service Commission decided that homosexuality was no longer. Eventually, the District of Columbia police retreated from targeting gays for arrests for consensual sex. And in 2003, the Supreme Court ruled, in Lawrence v. Texas, that an individual’s “intimate relationships” were of no concern to the government, at least as far as criminal law was concerned.
Kameny lived long enough to be recognized as a gay rights hero. The
obituary in the New York Times and the appreciation on the CBS program “Sunday Morning” included pictures of Kameny with President Obama in the White House, four decades after he picketed outside its gates. Kameny recognized the changes, but he was also unchanged in his determination. He was not satisfied that Congress has yet to make it illegal to discriminate in the workplace on the basis of sexual orientation. He was not satisfied that marriage equality remains a goal, not a fact. But he could take some pride in having accomplished to some extent the goal set out in the initial charter of the Mattachine Society of Washington: “to secure for homosexuals the right to life, liberty, and the pursuit of happiness.”
Frank Kameny, who died last week (Oct. 11) at the age of 86, had virtually no one behind him or on his side when he began fighting for civil rights for gay Americans like himself in the late 1950s. Back then, homosexuals were all but alone, deemed either immoral or mentally ill or both, presumed unfit for government service, politically powerless, and invisible in information or entertainment media.
Kameny did as much as to change that, probably more, than any other single person. Speakers at a program last week sponsored by the Rainbow History Project of Washington, D.C., rightly remembered him as having laid the philosophical basis for the gay rights movement. Kameny led the legal fight to remove homosexuality as the basis for disqualification from working for the federal government. He led the successful effort to get the American Psychiatric Association to stop classifying homosexuality as a mental illness. And he coined the phrase, “Gay is good,” which over time gave gays and lesbians self-esteem and self-confidence and eventually helped change society’s views of homosexuality as well.
Kameny, a World War II veteran and Harvard-trained astronomer, started the fight out of necessity after having been fired from his job as an astronomer with the U.S. Army’s Map Service. (It is commonly reported that Kameny was arrested for cruising in Washington's Lafayette Park, but in his later appeal Kameny attributed his dismissal to his truthful disclosure on an employment form of a prior arrest in San Francisco on a baseless charge that was later expunged.) He fought his dismissal all the way to the U.S. Supreme Court, representing himself — on his own — in a strongly argued plea that his personal life had nothing to do with his government service. The justices refused to hear the case. (The 1961 petition is available here, as part of the Rainbow History Project’s Frank Kameny pages.)
In the same year, Kameny founded one of the first gay rights organizations, the Mattachine Society of Washington. There were other organizations of the same name founded in the 1950s in Los Angeles and San Francisco. (Mattacino was a character in Italian theater, a court jester of sorts.) The Washington organization was independent, however, both in form and spirit. Unlike the California organizations, Kameny resolved to be as public as possible in advocating for the rights of gays and lesbians.
It was in that spirit that Kameny led the first gay rights picketing in front of the White House on April 17, 1965 — four years before the raid on the Stonewall bar in New York City that is often treated as the beginning of the gay rights movement. The demonstration drew no news coverage except a brief mention in Washington’s Afro American newspaper, but the placards that Kameny and his dozen or so allies carried have now been turned over along with Kameny’s papers to the Library of Congress. Six years later, in 1971, Kameny ran for the District of Columbia’s non-voting seat in the House of Representatives. He was the first openly gay person to seek federal office in the United States.
Kameny was equally bold in challenging the psychiatric establishment to remove homosexuality from its authoritative Diagnostic and Statistical Manual of Mental Disorders (the so-called DSM). As speakers at the Rainbow History program recalled, Kameny led a small band of gay guerrillas into the APA’s annual meeting at a Washington, D.C., hotel, stormed the stage, and lectured the startled psychiatrists that they were all wrong about homosexuality.
Along with public advocacy, Kameny and the Mattachine Society also functioned as a self-help organization for gays and lesbians. A friend recalled to me having called the group’s hot line for medical advice after having his first same-sex experience. The society published a pamphlet with advice about what to do if arrested on sex-related charges. And Kameny provided his apartment as a way station for visiting gay activists.
The APA delisted homosexuality in 1973. Two years later, the U.S. Civil Service Commission decided that homosexuality was no longer. Eventually, the District of Columbia police retreated from targeting gays for arrests for consensual sex. And in 2003, the Supreme Court ruled, in Lawrence v. Texas, that an individual’s “intimate relationships” were of no concern to the government, at least as far as criminal law was concerned.
Kameny lived long enough to be recognized as a gay rights hero. The
obituary in the New York Times and the appreciation on the CBS program “Sunday Morning” included pictures of Kameny with President Obama in the White House, four decades after he picketed outside its gates. Kameny recognized the changes, but he was also unchanged in his determination. He was not satisfied that Congress has yet to make it illegal to discriminate in the workplace on the basis of sexual orientation. He was not satisfied that marriage equality remains a goal, not a fact. But he could take some pride in having accomplished to some extent the goal set out in the initial charter of the Mattachine Society of Washington: “to secure for homosexuals the right to life, liberty, and the pursuit of happiness.”
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