Law

Polyamory, the Right to Privacy, and Religious Freedom

Last week, a federal District Court judge in Utah struck down a law used to prosecute members of polyamorous relationships. Predictably, some conservatives immediately brought up the slippery slope to legalized adult incest and legal " teen sex cults ." However, the decision is a very rational and straightforward application of core principles of the right to privacy and religious freedom. It is crucial to understand, first of all, that Judge Clark Waddoups's decision in Brown v. Buhman did not "legalize bigamy." The lawsuit was brought by the reality television star Kody Brown, who lives in a polyamorous relationship with four women but is only legally married to one. Brown did not even contest Utah's limitation of marriage to couples, and Judge Waddoups deferred to a Supreme Court precedent dating back to the 19th century holding that bans on bigamy are constitutional. Rather, the decision concerns an unusual, extraordinarily broad provision of Utah law under which "[a] person is...

Four Takeaways from Yesterday's NSA Ruling

Flickr/passamaquoddy eagle
Flickr/Cliff Y esterday, U.S. District Court Judge Richard J. Leon ruled that the National Security Agency's extensive collection of "metadata"—as revealed by Edward Snowden earlier this year—is likely to have violated the Fourth Amendment. Justice Leon stayed his ruling ordering the government to stop the warrantless surveillance of two plaintiffs pending a trial. Given the inevitable appeal, we're a long way from the end of this NSA program—even if Judge Leon rules again in favor of the plaintiffs. Not every legal challenge to the metadata program was successful. Judge Leon dismissed a challenge based on the theory that the NSA's program exceeded the statutory authority granted by Congress. The court ruled that it lacked the jurisdiction to hear the claim under the Administrative Procedures Act. Judge Leon did, however, find that he had jurisdiction to hear the constitutional claims against the program. "While Congress has great latitude to create statutory schemes like FISA," the...

From Their Cold Dead Hands

Flickr/Jon Payne
This Saturday is the one-year anniversary of the Newtown shooting, and it's remarkable where we've come in that time. In the weeks that followed, everyone said that now we could finally pass some sensible measures to stem the river of blood and death and misery that is the price we pay for America's love of firearms. President Obama proposed some extraordinarily modest measures: enhanced background checks, limits on the kind of large-capacity magazines mass murderers find so useful, perhaps even a new ban on new sales to civilians of certain military-style weapons. Not a single thing that would keep a single law-abiding citizen from owning as many guns as he wants. So here we are, a year later, and what has happened? First of all, at least 30,000 more Americans have had their lives cut short by guns; tens of thousands more were shot but survived. Around 200 children have been shot to death in that time—another 10 Newtowns. There was no federal legislation on guns. It died, because...

The Year in Preview: The First Amendment Takes Center Stage

AP Photo/Pablo Martinez Monsivais
Lots of things happened in 2013. President Obama was sworn in for a second term. We got a new pope and a new royal baby. Two bombs went off at the Boston Marathon and frightened a nation. The Supreme Court stripped power from the Defense of Marriage Act and the Voting Rights Act. But these are all stories we've heard before, and if you haven't, you certainly will in the millions of "Year in Review" pieces set to be posted between now and New Year's. Over the next two weeks, our writers will instead preview the year ahead on their beats, letting you know far in advance what the next big story about the environmental movement—or immigration reform, reproductive rights, you get the picture—will be. You're welcome in advance for not making you read a dozen more retrospectives on Ted Cruz and Twerking and fiscal cliffs and shutdowns and selfies. Today, we cover the upcoming year on the Supreme Court docket. (AP Photo/J. David Ake) 2 014 will be an important year for the First Amendment. In...

Is de Blasio Copping Out Already?

AP Photo/Philip Scott Andrews, File
AP Photo/Seth Wenig I f it’s still rather unclear how Mayor-elect Bill de Blasio intends to govern New York City, his selection of William J. Bratton as police commissioner on Thursday offered precious little in the way of clarifying clues. The former top cop in Boston and Los Angeles, Bratton served as New York Police Department commissioner at the beginning of Rudy Giuliani's administration in the mid 1990s, where his success is credited with popularizing neighborhood-mapping programs like Compstat and the "Broken Windows" theory of crime, which essentially holds that pursuing petty acts of vandalism and maintaining urban environments can prevent more serious crime. What his admirers tend not to mention is that Bratton also ramped up the use of stop and frisk in Los Angeles, and that tactic represents the steepest cost imposed on the poor in the name of Michael Bloomberg's Luxury City—as well as a preferred campaign trail punching bag of de Blasio. But if the Bratton appointment is...

Rewarding Reduced Crime Rates—Not Mass Incarceration

Flickr/wwarby
An increasing number of people, up to and including the Attorney General of the United States, have condemned mass incarceration in the United States. The effects of having 5 percent of the world's population but nearly 25 percent of its prisoners housed within our borders are profound . It needlessly ruins countless lives, costs enormous sums of money that could go to more useful purposes, and disproportionately affects racial minorities. As the opposition to mass incarceration builds, a new report from the Brennan Center of Justice makes a valuable contribution to the question of how imprisonment rates can be reduced. Legislators on the Hill—from both parties—have made some tentative steps towards prison reform. But, it isn't clear how much these steps can help; most imprisonment in the United States happens under states' watch. The reforms suggested by the Brennan Center report—written by Inimai Chettiar, Lauren-Brooke Eisen, Nicole Fortier, and Timothy Ross—are particularly...

Reversing Broward County's School-to-Prison Pipeline

AP Images/Phil Sears
AP Images/Phil Sears W hen, after a nationwide search, he was hired two years ago to serve as superintendent of Florida’s Broward County Public Schools, Robert Runcie began brainstorming ways to close the racial achievement gap. At the time, black students in the sixth-largest district in the country had a graduation rate of only 61 percent compared to 81 percent for white students. To find out why, Runcie, who once headed a management-consulting firm, went to the data. “One of the first things I saw was a huge differential in minority students, black male students in particular, in terms of suspensions and arrests,” he says. Black students made up two-thirds of all suspensions during the 2011-2012 school year despite comprising only 40 percent of the student body. And while there were 15,000 serious incidents like assaults and drug possession reported that year, 85 percent of all 82,000 suspensions were for minor incidents—use of profanity, disruptions of class—and 71 percent of all...

The Affordable Care Act v. Supreme Court, Round 2

AP Photo/Tony Gutierrez
AP Photo/Carolyn Kaster Y esterday, the Supreme Court agreed to hear two cases questioning the Affordable Care Act's contraception mandate: Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc . These rulings could have potentially major implications for the rights of American women. Let's consider the issues at hand, one at a time: Does the contraceptive mandate violate religious freedom? The key question in both cases is whether the contraceptive mandate violates the Religious Freedom Restoration Act. This legislation requires any policy placing a "substantial burden" on religious Americans prove that said burden serves a compelling government interest. Both Conestoga Wood and Hobby Lobby contend that the Affordable Care Act's demand that they offer contraception coverage to their employees does not pass the Religious Freedom Restoriation Act's test. But, as the Prospect 's Amelia Thomson-DeVeaux asks , is the mandate actually violating the religious...

The Contraception-Mandate Cases Aren’t Really About Contraception

Ap Images/Tony Gutierrez
Earlier today, the Supreme Court announced that it would hear not one, but two challenges to the Obama administration’s contraception mandate; they’ll be heard together in an action-packed hour of oral arguments sometime in the spring. Both cases deal with conservatives’ ever-growing penchant for anthropomorphizing corporations—this time, the justices will decide whether companies can be exempted from the mandate to provide birth control at no cost to employees because of the owners’ religious beliefs. Oddly enough, neither of the business owners involved are Catholic, even though the first objections to the contraception mandate were raised by Catholic leaders, who didn’t want religiously affiliated hospitals and schools to provide birth control, which the Catholic hierarchy considers taboo. One case— Sebelius v. Hobby Lobby Stores , documented extensively for the Prospect by Sarah Posner earlier this summer —deals with an arts-and-crafts chain owned by evangelical Christians. The...

Four Reasons the Nuclear Option Was a Liberal Win

The detonation of the "nuclear option" against the filibuster for executive branch and most judicial-branch appointments was an obvious win for progressives . If, as seems likely, the use of the nuclear option puts the filibuster on the road to complete oblivion, this is an even bigger win for progressives, as the filibuster is a reactionary device both in theory and in practice . And yet, many people on all parts of the ideological spectrum have resisted this conclusion. Here are some of the major arguments being made against the deal from a Democratic perspective—and why they're wrong. 1. Democrats Will Be Sorry, Because This Means Republicans Will Keep Doing What They've Been Doing Since the Reagan Administration As I discussed in my initial reaction to the historic action of Reid and the Democratic caucus, the debate over whether to end most judicial filibusters has involved numerous threats by Republicans to keep appointing the same kinds of judges that conservative presidents...

In the Weeds

Can Colorado and Washington make legal marijuana work?

The American Prospect/Jesse Lenz
The American Prospect/Jesse Lenz A t midnight on December 6, 2012, when marijuana became legal in the state of Washington, a gaggle of celebrants gathered underneath Seattle’s Space Needle. Cheering and laughing, with no police in sight, they lit up and inhaled. “I feel like a kid in a candy store!” one man said. “It’s all becoming real now.” The chilly reveling was documented by plenty of television cameras, but it was a little premature. Apart from the fact that what the revelers were doing was not covered under the new law—possession of marijuana is legal, but public consumption is not—the success of the state’s experiment was far from assured. Along with Colorado, where voters also approved legalization last November, Washington is attempting to do something unprecedented: set up a state system to regulate and sell a drug that is illegal in the United States. Marijuana is classified as more dangerous than cocaine, methamphetamines, and opium. States that have legalized marijuana...

Razing Arizona Women's Health Care

AP Images/The Fort Worth Star-Telegram/ Dave Kent
L ike Napoleon forging into the Russian winter, anti-choice politicians are loath to give up on abortion restrictions, however minor, until the Supreme Court forces them to. On Wednesday, Arizona Attorney General Tom Horne asked the Supreme Court to reinstate a law that would strip Medicaid funding from doctors and clinics who perform abortions. Poor women already can’t use federal dollars to cover abortion procedures—that’s been illegal since the late 1970s. The law, which was struck down by the Ninth Circuit Court of Appeals in August, instead would prevent the state’s abortion providers from being reimbursed by Medicaid for providing any kind of care to low-income women, whether it’s breast exams, cervical cancer screenings, or contraceptive services. The law’s supporters allege that public money is trickling into abortion providers’ pockets because they offer preventive care services, enabling them—however indirectly—to perform more procedures. If it hadn’t been overturned, the...

Harry Reid's Triumph

At least when it comes to executive branch and (most) judicial branch appointments, to paraphrase Leonard Cohen, democracy is coming to the United States Senate. Senate Democrats responded to the Republican minority's blockade against any Obama appointments to the D.C. Circuit by eliminating the filibuster for most presidential nominations. This vote will likely be the most important congressional vote of President Obama's second term, and Senate Majority Harry Reid and most of the rest of the Democratic caucus deserve immense credit for pulling it off. I have explained at length why I believe that the filibuster is an indefensible practice. The short version is that the American political system already has an inordinately high number of veto points, so anyone favoring additional extraconstitutional ones should face a very high burden of proof. The filibuster, with its long and dismal history of allowing overrepresented minorities to prevent Congress from addressing the interests of...

Things Aren't Looking Good for Reproductive Rights in Texas

AP Photo/Eric Gay, File
AP Photo/Tamir Kalifa, File On Tuesday, there was at least one good piece of good news for supporters of reproductive freedom, as the proposed post-20-week abortion ban the Prospect 's Amelia Thomson-DeVeaux covered earlier this week was defeated by an encouraging ten-point margin . At another venue, however, there was bad news for the reproductive rights of women. A bare majority of the Supreme Court allowed the draconian new abortion restrictions passed by the Texas legislature to go into effect, and did so in a way that represents bad news for the possibility of the law being struck down by the Court. The question the Supreme Court was considering was an appeal to a decision written by ultra-reactionary Circuit Court Judge Priscilla Owen "staying"—that is, preventing from going into effect—a District Court ruling holding some parts of the Texas law unconstitutional. Owen's absurdly narrow reading of Casey was not surprising, and unfortunately it's not necessarily an inaccurate...

The People's Court?

If you want to see where the problems of unaffordable housing and low wages and poor education play out every day, go to Detroit's 36th District Court. 

Associated Press
*/ Associated Press Detroit's 36th District Court T he first time I went to Detroit’s 36th District Court, I didn’t know the drill. Most people don’t know the drill the first time they go. A lawyer I’d met agreed to accompany me. He went in the side door, reserved for attorneys and court staff. I joined the long line at the main entrance, waiting to pass through the metal detectors and have my bag scanned. No cell phones, the guard told me. Put it in your car. I waved the lawyer back outside. He was due in court, and his car was blocks away. Give me the phone, he said. I’ll bring it in. I returned to the line. You can’t bring in that hair clip, the guard told me. Just throw it out, I said. I scooped my bag off the belt and joined the lawyer, who was standing where the entryway carpet meets the linoleum, near a line of people snaking through a rope maze, waiting to pay tickets. I was intimidated and upset, and I’d been at the 36th less than five minutes. The lawyer and I rode the...

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