Tag Archives: civil rights

Reflections for the 4th

As we prepare to celebrate the 4th of July and reflect on the founding of our nation, the BBA is reminded of its own beginnings and the meetings convened by John Adams in the 1700’s.  These meetings provided lawyers throughout the city with an opportunity to discuss the practice of law in colonial America and the common desire to live in a just society. Today the BBA, as a community of attorneys and citizens, focuses on these same issues in a variety of ways.

Just one example of the ways we do this is through our public policy work.  The BBA speaks out at the federal and state level on significant pieces of legislation that impact access to justice, the administration of justice and the practice of law – including civil rights and civil liberties. Our advocacy in this area spans such issues as affirmative action, the right to vote and same-sex marriage.  Some of our recent work includes raising our concerns over the National Defense Authorization Act in a letter to President Obama, testifying in support of the  newly enacted Transgender Equal Rights Act and collaborating with the Legislature to secure passage of a critical access to DNA bill in Massachusetts. The BBA continues to be a beacon for fair and equal treatment under the law for every citizen.

For America’s birthday we thought we’d share a quote from our founder, John Adams.  In a letter to his wife Abigail on July 3, 1776, John Adams wrote of the Declaration of Independence and the coming struggle for freedom:

“I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means.”

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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NDAA Dangers Still Loom

In December, BBA President Lisa Goodheart urged President Obama to veto the National Defense Authorization Act for Fiscal Year 2012 (NDAA) because it was a radical departure from the rule of law established in the United States.  In particular, the detention principles in the bill pose serious threats to fundamental constitutional principles protecting individual civil rights and civil liberties.  Ultimately, President Obama signed the NDAA into law stating “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”  In a recent panel on the NDAA at the BBA, one expert described the bill as “the most alarming new law never heard of by most Americans.”  Here’s why.

Sections 1021 and 1022 of the NDAA allow for the indefinite detention of terror suspects – including American citizens arrested domestically – without a trial or charge.  The authority granted to the federal government by Sections 1021 and 1022 is clearly contrary to the principles of access to justice and civil rights that has served our country from its founding.  It also authorizes the military to make such detentions, holding U.S. citizens in military custody or prosecuting them in military tribunals.  This circumvents the U.S. Justice Department and avoids the federal court system which has successfully prosecuted hundreds of terrorism-related cases – including several here in Massachusetts.

Another troubling part of the bill is Section 1028.  This Section places undue roadblocks in the way for Guantanamo Bay detainees who have been cleared of wrongdoing and are trying to be transferred to foreign countries willing to accept them.  There are more than 170 men left in Guantanamo Bay – 89 have been cleared of wrongdoing and could be transferred immediately.  Section 1028 requires certain additional certifications and compliance in the use of funds to transfer detainees that only prolong the unjust detention of individuals found innocent of alleged crimes against the United States.

So where are we now?  The NDAA went into effect on March 1st.  In late February, President Obama issued Presidential Policy Directive 14 which sets out procedures for implementing Section 1022 of the NDAA.  Directive 14 contains a broad set of waivers that could be understood to mitigate the controversial Executive powers granted by the NDAA.   However, it is not a permanent solution.  Just because this President vows to not abuse the powers vested in the Executive by the NDAA, it does not eliminate the possibility of the next President – be it next January or 4 years from now – interpreting the NDAA differently.

The NDAA threatens our American ideals of civil rights.  Every time our rights are changed, our enemies win another victory.  Although the President has expressed his discomfort with the NDAA and issued Directive 14, this affront on our adherence to the rule of law is unacceptable and must be reversed.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Still Proud to Be First!

Recently, New York became the latest state to legalize same-sex marriage when Governor Andrew Cuomo signed the Marriage Equality Act into law in June.  A 62-member Senate had approved the bill by a vote of 33-29.  The bill officially took effect July 24th, which marked 30 days since Governor Cuomo signed it into law.

However, this monumental decision by the New York State Assembly did not come without a fight. Lawmaker Daniel O’Donnell, the first openly gay member of the New York State Assembly, introduced a same-sex marriage bill in 2007, which was approved by the Assembly three times in five years, but subsequently rejected by the Senate each time. The final push towards legalization came with a switch in the opinion of four of the New York representatives (three Democrats and one Republican).  Some of the representatives admitted that they were swayed by the public opinion in their districts while others revealed a change in their moral stance on the issue.

Following the Supreme Judicial Court’s 2004 ruling in Goodridge v. Department of Public Health, Massachusetts became the first state to legalize same-sex marriage. The Boston Bar Association filed an amicus brief in support of the plaintiffs in the case, seven same-sex couples who argued that Massachusetts law subjected them to discrimination by denying them the right to obtain civil marriage licenses.   When the Massachusetts law officially took effect on May 17, 2004, we became the sixth jurisdiction in the world to legalize same-sex marriage after the Netherlands, Belgium, Ontario, British Colombia, and Quebec.  Since then, several U.S. jurisdictions (Connecticut, the District of Columbia, Iowa, New Hampshire, Vermont, and now New York) have joined Massachusetts in enacting similar measures to legalize same-sex marriage.

President Obama’s 2011 decision to direct the Justice Department to stop defending the Defense of Marriage Act (DOMA) against lawsuits challenging its constitutionality marked a significant shift in the political atmosphere surrounding the issue. There are currently two cases challenging the constitutionality of DOMA in the First Circuit: Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

The BBA takes pride in its record of supporting equal rights and universal access to justice as the issue of same-sex marriage progresses.  We will continue to monitor same-sex marriage issues throughout Massachusetts and in Washington.

-Michael Bouton

Government Relations Department

Boston Bar Association

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Let’s Extend Equal Rights to Everyone in Massachusetts

Think about it!  EMC, Harvard University, Harvard Pilgrim Health Care, and John Hancock – to name just a few – are among the growing number of Massachusetts employers providing equal opportunities and protections to transgender people.  Shouldn’t our state laws do the same?

Since legislation was first filed in 2007, the BBA has supported adding “gender identity and expression” to the state’s civil rights laws and to the list of offenses that are treated as hate crimes. A simple update to the Massachusetts discrimination laws, An Act Relative to Transgender Equal Rights really is a civil rights bill that would provide explicit protection to transgender people. Current Massachusetts civil rights laws prohibit discrimination only on the basis of age, race, creed, color, national origin, sexual orientation, sex and marital status.

Isn’t it about time that Massachusetts joins the growing number of states that already have laws protecting transgender people? A June 8th Judiciary Committee hearing is the next step in that process.  The Judiciary Committee will hear testimony on H 502 and S 764, filed in the House by Representative Carl Sciortino and in the Senate by Senator Benjamin Downing.

We have made progress in this area.  The Boston City Council passed a transgender protection ordinance nine years ago and earlier this year Governor Patrick signed an executive order banning discrimination against transgender state workers.  With this order, Massachusetts joins several other states with executive orders protecting transgender state workers.

While these are significant steps, Massachusetts should protect all workers and not just state workers.

As in past legislative sessions, supporters of this proposal will probably far outnumber opponents.  Even so, next week’s Judiciary Committee hearing is important.  If this bill is passed, Massachusetts won’t be just joining a growing number of jurisdictions around the country that are enacting transgender-inclusive laws, but will be making a significant statement — that discrimination against transgender individuals is inconsistent with our common desire to live in a just society.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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