Posts Tagged ‘Constitutionality’

Judge Virginia Phillips of the Federal District Court for the Central District of California yesterday ordered a worldwide injunction banning enforcement of the military’s Don’t Ask Don’t Tell law.

The 17-year-old ban on open gays serving in the military “infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution,” Phillips wrote in the injunction.

The injunction came following her ruling last month that DADT is unconstitutional. Although the ruling and yesterday’s injunction has been hailed as a landmark for LGBT rights, the government has 60 days and is widely expected to appeal before the injunction takes effect. A stay will almost certainly be granted in the meantime. “The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so,” Dale Carpenter writes at the Volokh Conspiracy.

Jason Mazzone at Balkinization notes that the Obama administration could play both sides of this touchy issue.

The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”

University of Wisconsin law professor Ann Althouse disagrees on her blog. The timing is all off, she notes, and besides, Obama has proven wishy-washy on LGBT rights issues, something that could come back to haunt him and the Democrats in November’s midterm elections.

But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It’s such a bad issue for Obama. He hasn’t done what he promised, and he’s fought against constitutional rights that he ought to be actively pursuing, whether he’d made promises or not. He’s going to have to rest on the argument that he was always all about Congress making the change. But why hasn’t his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They’ve only made everyone unhappy — people who want DADT repealed and people who don’t. And then there’s the additional issue of “activist” judges.

Andrew Sullivan places some blame on Congressional Republicans, who successfully blocked legislative repeal of DADT several weeks ago. Although their public objection was that the repeal was tacked as a rider to the annual defense spending bill, Sullivan remains pessimistic about a legislative repeal moving forward.

Here’s the thing. We have no guarantee that the Senate will pass legislative repeal of DADT in this session; and there’s every chance that a radically Christianist GOP will win majorities in one or both Houses and definitely be able to sustain a filibuster against repeal in the next session if necessary. This is not because even most Republican voters back DADT; it is because it is a party hijacked by religious fundamentalists who cannot conceive of openly gay people serving their country. Look at the party of Paladino and DeMint and Palin. You think they will support anything that could remotely be deemed pro-gay?

The Department of Justice has 60 days, until Monday, December 13, to appeal, and if the administration plans to appeal they will likely wait until after the election in three weeks to do so.


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France’s senate yesterday approved by 246-1 (with 100 abstentions) a ban on burqas, a traditional Muslim garment for women that completely obscures the face. The ban comes with some severe penalties: women caught wearing burqas or other obscuring veils in public face a €150 fine and a “citizenship course”; men who force women to wear the garments face a €30,000 penalty and up to a year in prison. France has a Muslim population of five to six million, but only 2,000 women are estimated to wear burqas. However, the ban will also be imposed on tourists.

President Nicolas Sarkozy promoted the bill as a protection for women against wearing burqas or niqabs. “This is not about security or religion, but respecting our republican principles,” Justice Minister Michele Alliot-Marie told Agence France-Presse. “France, land of secularism, guarantees respect for all religions (but) hiding the face under a face-covering veil is against public social order, whether it is forced or voluntary.” President Barack Obama and many Islamic leaders have decried the ban as a violation of free speech and religion.

It’s worth noting that the ban had at least one female Muslim supporting it. “I support banning the burqa because I believe it equates piety with the disappearance of women. The closer you are to God, the less I see of you — and I find that idea extremely dangerous,” journalist Mona Eltahawy told Salon in July. Her argument is certainly interesting and is poorly served by my brief quotation; I highly recommend reading the entire interview.

According to the BBC, France’s Constitutional Council, the highest constitutional authority in France, now has a month to decide if the ban is legal, and the ban could also be challenged at the European Court of Human Rights in Strasbourg, France. The outcome of that scrutiny will be closely watched; Spain and Belgium are considering similar bans.

With all the recent controversies involving Islam — including the Park51 community center in Manhattan and the Florida pastor who planned to burn Korans on the anniversary of 9/11 last week — could a similar ban happen in America? Or rather, would such a ban be constitutional in America?

An online poll (the height of scientific accuracy!) conducted by Above the Law in May found 57 percent of respondents opposed the ban as a violation of religious freedom.

University of Chicago law professor Martha Nussbaum [another complex and nuanced argument, worthy of a full read-through] examines some of the common arguments from burqa opponents. Security concerns and the need to have faces visible in public are the primary argument, one she tears apart.

 It gets very cold in Chicago – as, indeed, in many parts of Europe.  Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths.  No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.  Moreover, many beloved and trusted professionals cover their faces all year round: surgeons, dentists, (American) football players, skiers and skaters. What inspires fear and mistrust in Europe, clearly, is not covering per se, but Muslim covering.

Nussbaum makes similar short shrift of arguments that the burqa objectifies women and is worn only through coercion. She also rejects the claim that burqas are uncomfortable, “the silliest of the arguments.” After systematically rejecting all the arguments for the ban Nussbaum concludes:

We don’t even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty.  Equal respect for conscience requires us to reject them.

Nussbaum did not specifically examine France’s ban in her post, instead using the hypothetical liberal democracy. In a follow-up, however, she touched on French case law.

The French policy of laïcité does indeed lead to restrictions on a wide range of religious manifestations, all in the name of a total separation of church and state.  But if one looks closely, the restrictions are unequal and discriminatory.  The school dress code forbids the Muslim headscarf and the Jewish yarmulke, along with “large” Christian crosses.  But this is a totally unequal burden, because the first two items of clothing are religiously obligatory for observant members of those religions, and the third is not: Christians are under no religious obligation to wear any cross, much less a “large” one.   So there is discrimination inherent in the French system.

John Yoo, author of the infamous Bush administration torture memos, also weighed in over at Ricochet.

My bet if that the law were written in the way that the French have done it, it might have a chance. As I understand it, the French law does not mention or ban burqas specifically. It prohibits people from wearing masks in public, with certain exceptions for costumes (this being France, where people wander the streets of Paris eating eclairs and dressed up as characters in Dangerous Liasions, I suppose). If a law like that were passed in the US, it would be neutral toward religion on its face, as opposed to a law — like one that banned animal sacrifices, but with an exception for killing animals to eat them — that obviously targeted religion (that too, was another Supreme Court case).

UChicago law professor Richard Epstein, commenting on the same post as Yoo, seemed to be less decided on the matter.

The restrictions are uneasy if the objections to them are symbolic about the place of women in society. There is no reason why a majority of people could make the world seem unanimous by banning the Burqa. But, for one thing, were these decisions made by autonomous women or forced upon them by husbands or religious leaders who are prepared to force women to wear Burqas? At this point the law would be an effort to stop coercion, not encourage it.

Finally, Elise Jordan, writing at the conservative FrumForum, compared the burqa ban to banning KKK masks in an effort to protect blacks in the south.

The courts ruled in favor of equality over free expression because of security.  Men and women had as equal a right to see a face as did the man or woman who desired to cover it.  State laws banned full facial concealment in an effort to stop the violence.  (These laws eventually helped collapse the Klan because KKK membership winnowed in their new era of transparency.)

The takeaway is that if security is a consideration, no matter the sex, religion, ideology, or orientation, we are all equal in our right to view facial expression.  Women wearing burqas are likely not hiding a bomb, but the garment is used too often to conceal terror to be ignored.

Such a ban in the U.S. would face the conflict of restricting religious and speech freedoms in the name of increased security. If a court were seeking to resolve that conflict minimally (something the Roberts court has not been terribly good at) the most obvious solution would seem to be requiring some basic security precautions — say, on flights, or secure buildings, as well as requiring the face to be displayed on a driver’s license — and otherwise letting religion take its course. It would be difficult to prove burqas are in all instances oppressive to women, and with such uncertainty religious freedom would likely prevail.

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