Transparency and Tyranny of the Majority

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind… It is plain that anonymity has sometimes been assumed for the most constructive purposes.”

-- Talley v. California, 362 U.S. 60 (1960)

In January 1776, a short pamphlet titled Common Sense hit the streets of Boston and other cities and towns throughout the New World, calling on people to take up arms against Britain in a fight for independence. Within months, it became one of the most widely read books in the colonies.

Given that its very content was treasonous, the pamphlet was published anonymously, with knowledge of its true author (the patriot Thomas Paine) remaining a secret into the spring of the year of Independence.

This week, NYC Councilmember Ben Kallos (D-East Side/Roosevelt Island) introduced a bill to create a centralized, public, online freedom of information law (FOIL) system in the City of New York. As reported in the Gotham Gazette, “Requests would be entered electronically and anyone would be able to see who is requesting what information from which agency.” Other cities—from Oakland to Chicago—already make names of FOIL requesters public. And indeed, in New York State, FOIL requests themselves are public documents subject to disclosure without redaction.

Nevertheless, Kallos’ bill is likely to raise questions about the intersection between government transparency and personal privacy. When should citizens be forced to disclose their communications with government? Are there circumstances in which anonymity is needed to avoid unwarranted harassment?

These questions continue to pose challenges, not just with regard to FOIL, but also in the context of campaign finance disclosure—as discussed by Globe columnist Scot Lehigh last week—and lobbying disclosure.

Indeed, New York’s Joint Commission on Public Ethics (JCOPE), which under a 2011 law is responsible for determining whether a particular advocacy organization should receive an exemption from disclosure if their donors faced “harm, threats, harassment, or reprisals” because of their support, has had to grapple with the implications of a subjective regime of anonymity.

Many groups across the political spectrum (from abortion rights groups to the conservative New Yorkers for Constitutional Freedoms) have sought exemptions, including the New York Civil Liberties Union, which is typically on the side of transparency (disclosure: NYCLU is a former employer).

While you could be forgiven for thinking that these groups are simply trying to protect their donor base, regardless of the actual threat posed, there are very real reasons to worry about the effects that full and complete disclosure of this kind would have on speech in America.

More than 50 years ago, the Supreme Court first discussed the importance of anonymous speech in Talley v. California, 362 U.S. 60 (1960), which struck down a Los Angeles ordinance forbidding the distribution of literature without the name and address of the individual(s) who prepared/distributed it. The Court opinion was framed by two major goals—to prevent retaliation against unpopular views and to encourage free and open dialogue. 

More recently, in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court reiterated the strong interest in anonymous speech:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views…Anonymity is a shield from the tyranny of the majority… It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.

We may well believe that there is no good reason for corporations or deep-pocketed donors to be able to “hide in the shadows” or no good reason why an individual’s request of their government should be protected from public scrutiny, but America has a strong tradition of supporting anonymous speech on matters of public controversy.

As we continue the effort to improve the free flow of information and respond to the flood of money in politics unleashed by Citizens United and McCutcheon, we must not allow our desire to strengthen our democracy to undermine this essential bulwark of free and robust speech.

Crime, Clemency, and Constitutional Corrective Action

“[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

--Thomas Paine, Common Sense, 1776

Last week, many criminal justice advocates rejoiced at the Department of Justice’s announcement of a broad clemency initiative targeting “nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today’s more lenient sentencing laws.”

Many of the potential beneficiaries of the program were convicted of drug crimes between 1980-2010, during which time there only significantly more draconian penalties across the board and gross disparities in sentences based on certain types of drugs (powder v. crack cocaine being the most infamous).

As the Times notes, while Congress reduced (but did not eliminate) the disparity by passing the Fair Sentencing Act (FSA) in 2010, it has not chosen to apply the new sentences retroactively (though the Supreme Court did rule, 5-4, that the lower minimums apply to people who committed crimes prior to the law being enacted, but who were sentenced after the bill became a law—see: Dorsey v. United States, 567 U.S. ___ (2012)).

The decision not to apply the Fair Sentencing Act retroactively was not made without significant consideration by the Legislative branch. Indeed, in the wake of the FSA’s passage, Senators Dick Durbin (D-IL) and Mike Lee (R-UT) proposed broader retroactively in the “Smarter Sentencing Act”, which would allow individuals to petition the courts for sentence reductions commensurate with the FSA.

While the bill has yet to receive a vote, the Senate Judiciary Committee approved the Act by a bipartisan vote of 13-5 in January 2014. It is a good bill—a critical second act to the FSA—and Congress should pass it without delay.

But where does that leave the President’s new clemency system? Is it an appropriate tool to use to modify potentially thousands of sentences in a way that Congress specifically rejected when it passed the FSA only 4 years ago?

Linda Greenhouse, former SCOTUS scribe for the Times and current Journalist in Residence and Lecturer at Yale, wrote in January, “Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.”

I completely agree and that’s a darn good argument to make to urge House and Senate members to pass the Smarter Sentencing Act. It is, however, not such a good argument for the unilateral imposition of what one unitary Executive deems “rational” (indeed, logical as you may be, dear reader, it stands to reason that the officeholder at 1600 Pennsylvania Avenue is quite likely to disagree with your sense of rationality over time).

Indeed, the use of the unilateral clemency power is a far cry from supporting legislative changes to criminal laws, sentencing guidelines, or policies related to the use of prosecutorial discretion. In all three of those instances, the Executive branch is either using authority specifically granted to it and it alone under the Constitution, or is seeking to persuade another branch to support a specific policy recommendation.

The clemency power, while constitutionally authorized, has not traditionally been applied to situations in which Congress or the Courts could act—through their basic structure—to cure the underlying injustice.

As Chief Justice William Rehnquist declared in Herrera v. Collins, 506 U.S. 390 (1993), “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (emphasis added).

Like presidential pardons, which can and often are abused for political gain, a broad grant of clemency by the President, particularly where the underlying effort conflicts with recent Congressional action (see Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), is a tool that lends itself to overreach, particularly in lame duck terms.

Thus, sympathetic as I am to the urgent injustice the President is seeking to address, I cannot support a blanket use of the clemency power to address such an injustice (just as I cannot accept broad based commutations of death row inmates by governors despite my personal view that the death penalty is heinous and unconstitutional in all cases).

Instead, we must actively persuade our fellow citizens and our elected representatives to pass laws to end the era of irrational drug penalties and, if they choose not to do so, we must punish them at the ballot box. That’s the way democracy functions—not by fiat or force, but by politics and persuasion.

SCOTUSWatch: The iPhone Meets the Fourth Amendment

“The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.

Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 “Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21^st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub

In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18^th and 19^th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligence…The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.

SCOTUSWatch: Popular Sovereignty and Affirmative Action

As we enter the final three months of the Supreme Court’s term, Bay State Brahmin will focus on a number of big cases on the current docket and will look ahead to the Supreme Court’s 2014-2015 term.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

-- Chief Justice John G. Roberts, Jr.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)

In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court of the United States is considering the following question: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.”

At issue in Schuette is the constitutionality of Michigan’s “Proposal 2”—an amendment to the state constitution, passed in November 2006 with the approval of 58 percent of Michigan voters, banning public universities and schools from using race as a factor in admissions decisions.

In an October 2013 editorial, the New York Times argued that because the Supreme Court has found that “race-conscious admissions policies may further a compelling governmental interest in educational diversity,” that efforts by citizens to limit the use of those policies is unconstitutional. However, the very use of the word may by the Times, rather than shall (or must), highlights the inherent weakness in its argument and a fundamental mischaracterization of what Schuette is really all about.

Schuette is not—despite its name—about whether affirmative action programs are unconstitutional. Rather, the case concerns whether a State may amend its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. This is no small distinction; for while many Americans (including yours truly) believe that affirmative action programs are both constitutional as a matter of law and beneficial as a matter of public policy, few would argue that they are constitutionally required.

Nevertheless, the Times’ mischaracterization of the case continues to be repeated. Just this weekend, Julianne Hing, a reporter for Colorlines, wrote an op-ed in the Boston Globe titled, “The Supreme Court Gives License to Discriminate,” as if it were the Supreme Court, and not the People of the State of Michigan, who decided to limit race-conscious admissions by constitutional amendment.

The American Civil Liberties Union (disclosure: I was a staff attorney at the New York Civil Liberties Union, the New York State affiliate of the ACLU, from 2009-2011) and the NAACP Legal Defense and Education Fund (LDF) took the mischaracterization a step further in an amicus brief filed on behalf of the challengers, asserting that Proposal 2, "cannot be explained on grounds other than race.” This blanket assertion suggests that opponents of affirmative action in higher education—including a majority of Hispanic Americans and a nearly majority of Black Americans, according to a 2013 Gallup poll—are motivated by animus directed at minorities.

However, the decision of voters to remove a preferential use of race in college admissions is a far cry from the decision of voters to impose unique barriers on a discrete and insular minority—as Colorado voters did in 1992 when they passed Amendment 2 banning municipalities from taking steps to protect the rights of LGBT people (the Amendment was later struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996)).

Regardless of whether you agree with the argument above, it seems clear that a "win" by the challengers of Proposal 2 may well be Pyrrhic, since it will dissuade states from promoting policies that seek to rectify the effects of past and present discrimination out of the fear that, once enacted, said policies can never be repealed.

Nearly a decade ago—50 years to the day after the Supreme Court’s momentous decision in Brown v. Board of Education helped to launch the civil rights movement—I joined thousands on the steps of Cambridge City Hall to celebrate the first applications for marriage licenses from gay couples. I wrote at the time that while it was a “triumphant moment” there was also a sense that the battles were just beginning and that we could not rely on judges to make progress for us. Instead, “lasting victory [can] only be achieved if the fight [is] taken to the streets, churches, universities, barber shops, lunch counters, and workplaces of America.”

Rather than fight this battle in court, affirmative action proponents should engage the public in the marketplace of ideas to convince their fellow citizens that affirmative action is a tool that can and should be embraced as a means toward a more perfect Union.

P.S. For those interested in reading more arguments about Schuette and the critical issues raised by the case, check out SCOTUSBlog’s exceptional symposium.

A Republic if We Can Keep It: The Constitution as a Check

Mrs. Powel of Philadelphia: “Well Doctor, what have we got—a Republic or a Monarchy?”

Dr. Benjamin Franklin: “A Republic, if you can keep it.”

-- Upon exiting the Constitutional Convention of 1787, Philadelphia

Last week, Boston Globe columnist  Jeff Jacoby decried what has transpired in New London, Connecticut in the aftermath of the Supreme Court’s historic decision in Kelo v. New London. Kelo upheld, by a 5-4 vote, a broad interpretation of the State’s eminent domain power, endorsing the principle that under the Takings Clause of the 5^th Amendment, “public use” includes the seizing of private property by the State and the transfer of that property to another private party in pursuit of an economic development agenda.

Jacoby wrote, “[H]omeowners were dispossessed for nothing. Fort Trumbull was never redeveloped. Pfizer itself bailed out of New London in 2009. The Kelo decision was a disaster…”

In her dissenting opinion in Kelo, Justice Sandra Day O’Connor wrote, “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process.” O’Connor was right, just as Jacoby is right to bemoan what has transpired in New London.

However, O’Connor and Jacoby fall victim to the same logical fallacies: that a power that can be abused should not exist at all and that the Constitution, rather than the People, is our most sturdy bulwark against tyranny.

Indeed, it is the machinery of democracy—separation of powers, checks and balances, the voting booth—that forms the greatest safeguard of liberty. Congress has the power to declare war, but it must answer to the People. The President can make treaties, but he too must face the citizens at the polls. In the end, the Constitution is not meant to save us from ourselves. It merely gives us a Republic, which we the People must keep, as Benjamin Franklin famously said in 1787.

Scene at the Signing of the Constitution of the United States
Howard Chandler Christy, 1940

Kelo is far from the only case that poses questions related to constitutional vs. political checks. In National Federation of Independent Business v. Sebelius (the Obamacare case), Justice Scalia famously asked Solicitor General Donald Verrilli whether the government could force Americans to purchase broccoli. Verrilli chose to try to differentiate broccoli from health insurance, but the best answer to Scalia’s question was to explain that political rather than constitutional checks must be relied on to limit the scope of Congressional and Executive authority.

Indeed, then-Solicitor General Elena Kagan (disclosure: When Kagan was Dean of Harvard Law School we had several interactions concerning the school’s relationship with the independently-run Harvard Law Record) answered this query best when confronted by Senator Tom Coburn (R-OK) during her confirmation hearing.

Sen. Coburn asked, “If I wanted to sponsor a bill and it said, ‘Americans, you have to eat three vegetables and three fruits every day,’ and I got it through Congress and it’s now the law of the land, got to do it, does that violate the commerce clause?” Kagan responded, “Sounds like a dumb law.”

In other words, while there may be no constitutional limit to Congress passing such a law, the reason that Coburn’s hypothetical will never come to pass is because our politics would not allow it. The genius of our system assumed the vitality of those political checks and therefore permitted a broad enumeration of powers without the fear that the powers would be “taken to their limit.”

[As a side note, whether the government could force an individual to eat broccoli is a different matter entirely. I believe that the long-standing respect for bodily integrity at common law would mean that such a law would be a violation of 5^th Amendment Due Process (which is superseded only in very narrow circumstances of absolute necessity, see generally Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding mandatory vaccination under the 14^th Amendment)).]

In The Tempting of America, conservative legal scholar Robert Bork—once himself a nominee to the Supreme Court—declared, “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”

Bork was describing how the creation of new constitutional principles by judges (as opposed to the application of old principles to new circumstances) had the unintended consequence of generating additional principles even further separated from the original constitutional text.

However, Bork’s elegant phrase can also be used to support a different idea about American constitutionalism: namely, that while power can inevitably be abused, that does not mean that the power—standing alone—must be curtailed. Rather, it imposes on each of us, as citizens of the Republic, a duty to keep close watch on our officials, ensure the vitality and transparency of our public institutions, and engage with the great struggles of our time.

SB 1062, the Shame of St. Patrick, and Constitutional Moments

“[T]he right of people to be free of state action that discriminates against them because of race, like the right of persons to move freely from State to State, occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.”

-- Associate Justice William O. Douglas, Supreme Court of the United States

Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) (concurring)

Last week, Boston Mayor Marty Walsh appeared to be on the verge of a breakthrough regarding equal access to the South Boston St. Patrick’s Day parade. Parade organizers broke longstanding precedent and invited MassEquality—a grassroots LGBT rights organization—to participate. However, the organizers’ olive branch came with a catch: marchers would be barred from wearing T-shirts or holding signs that included the word gay or other references to sexual orientation. Unsurprisingly, this condition was unacceptable to MassEquality and this week, parade organizers rescinded their offer.

There is, of course, a big difference between a discriminatory shopkeeper operating in the public sphere and a group setting limits on who can join in its First Amendment protected conduct. The Supreme Court of the United States recognized as much when it unanimously upheld the St. Patrick’s Day organizers’ right to exclude LGBT people in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), in sharp contrast to its momentous decision in Heart of Atlanta Motel, which upheld the core “public accommodations” provision of the Civil Rights Act of 1964.

As a result, while utterly shameful discrimination continues to mar what should be a proud day in South Boston (not to mention on 5^th Avenue in New York City, where a similarly backward restriction on open LGBT marchers still exists), it is a settled principle of American law that individuals operating businesses open to the public cannot discriminate on the basis of race, sex, religion, or national origin. 

Greensboro Woolworth's Lunch Counter, 1960 (Smithsonian Institution)

This principle is one of the lasting legacies of the Civil Rights Era. Yale Law School Professor Bruce Ackerman is well known for his theory of “Constitutional Moments”—situations outside of Article V of the Constitution where the public expresses such overwhelming and sustained support for a constitutional transformation that the government absorbs the authority to act in a given manner.

Ackerman himself does not consider the Civil Rights Movement to be a Constitutional Moment (he cites the Civil War and the New Deal as exemplars). I disagree. It was a flashpoint in American life in which We the People decided that individuals may discriminate in the privacy of their own home and bigoted groups may have just as much a right to march as anybody else, but when you pitch a shingle on Main Street, USA and open your door to customers, that door must be open to all who wish to shop there.

And yet, 50 years after the Civil Rights Act, we found ourselves fighting a rearguard attack last month, when Arizona lawmakers passed SB 1062, a bill that would have allowed any individual, association, partnership, corporation, church, religious assembly or institution or other business organization to discriminate against LGBT persons under the guise of religious liberty. While Governor Jan Brewer (R) vetoed the bill, many insisted that the Constitutional Moment of the Civil Rights Movement did not extend to our LGBT brothers and sisters.

On This Week with George Stephanopoulos, Rich Lowry, editor of the National Review, tried to distinguish the discrimination permitted by SB 1062 with the lunch-counter discrimination of Jim Crow:

In this case, the (inaudible) in the street is not bristling with hostility to gay people. You're dealing with the occasional baker or florist who has a genuine conscientious objection. And if they do, you can find another baker or florist.

To put it bluntly, Rich: this Nation decided 50 years ago that it wasn’t the individual who had to find another baker or florist, it was the baker or florist who had to find another line of work.

Justice Douglas was right a half-century ago when he insisted that the principle enshrined in the Civil Rights Act was not girded merely by Congress’ power to regulate interstate commerce, but rather was essential to preserving the promise of the Republic as we imagined it to be in the aftermath of Ackerman’s first Constitutional Moment—the Civil War.

That promise—that no state may deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws—remains as vital and vibrant today as it has ever been; a North Star in a constitutional constellation that guides us, ever so slowly, toward justice.

A Civil Right All Its Own: Same-Sex Divorce in America

“While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction.”

-- Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)

Over ten years ago, the Supreme Judicial Court of Massachusetts ruled, by a 4-3 vote, that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.” It was a historic decision—the first of many over the past decade that has seen marriage equality spread to 17 states and the District of Columbia (see map).

While Goodridge will forever stand as a monument in America’s march toward equal justice, the relationship that spawned the lawsuit was—like many marriages—not as eternal. Two years after the ruling, the Goodridges split, with divorce coming three years later.

Unlike marriage, divorce does not lend itself to the same sweeping statements about American liberty. Indeed, while the SJC and the Supreme Court have long waxed poetic about the right to marry, there has been nary little ink spilled about the right to divorce.

And yet, there is no questioning it’s importance—as the SJC noted in the quotation from Goodridge excerpted above.

Today we’re going to tackle a problem that isn’t often discussed amidst the celebrations of marriage equality: the fact that same-sex couples encounter significant barriers in securing divorces if they move to states that do not recognizes their unions.

Indeed, while the Supreme Court’s recent decision in Windsor v. U.S. requires the federal government to recognize all marriages legally entered in the states, it did not require states to recognize the marriages of sister states. As a result, most of the 33 states that ban same-sex marriage by constitutional amendment or statute also prohibit same-sex couples from divorcing in their courts.

Courts across the country are currently hearing challenges to laws preventing same-sex couples from divorcing (most notably, the Supreme Court of Texas is set to decide In the Matter of the Marriage of J.B. and H.B. this Spring). But while the Full Faith and Credit Clause of the U.S. Constitution would seemingly prohibit states from discriminating against marriages legally entered into by sister states, that legal fight will take years to fully play out in the courts.

For now, the only option for same-sex couples who live in these states is to return to Massachusetts, New York, or another state that recognizes their marriage and maintain residency in their chosen state for between 3 months and 2 years (varies by state) to secure personal jurisdiction to seek a divorce.

In recognition of this problem, a number of states have passed laws allowing courts to grant jurisdiction, under certain circumstances, over divorce/dissolution proceedings for non-resident same-sex couples who have entered into a marriage, civil union, or registered domestic partnership in that state, including California, Colorado, Delaware, Illinois, Minnesota, Oregon, Vermont, and Washington D.C.

For example, in California, the law generally requires that at least one spouse be a resident of California for at least six months prior to filing a petition for dissolution. However, California makes an exception for nonresident same-sex married spouses to dissolve their marriage if 1) they married in California, and 2) neither spouse now lives in a state that will dissolve their marriage.

Colorado—which still does not permit same-sex marriage—applies similar exceptions for civil unions, as does Oregon for domestic partnerships.

These jurisdiction exceptions are clearly a stopgap measure on the road to a national decree on marriage equality (a ruling that I predict will come in the October 2015 Term at the Supreme Court). Not only that, but the exceptions are limited in their effect since they do not allow orders about other issues like property and debt, partner support, or children.

Nevertheless, despite being a half-measure, it is imperative that states like Massachusetts and New York pass these exceptions this legislative session. It’s a simple fix to a problem that affects thousands of families across the country.

Equal access to divorce may not generate the same excitement as marriage, but it is a civil right all its own and one that must be protected just as vigorously if we are to achieve equal justice under law.