Justice

May 13, 2013

Civil Rights Denied: PA’s Proposed Constitutional Same-Sex Marriage Ban

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

A couple of days ago I posted a blog about the dueling marriage equality and same-sex marriage ban bills recently introduced into the Pennsylvania General Assembly.  Today I thought I give a more detailed argument as to how discriminatory the same-sex marriage ban is to gays and straights alike.

As previously stated, on May 7, Pennsylvania State Representative Daryl Metcalfe (R-12 Butler County) introduced his legislation (HB 1349) to create a constitutional amendment defining marriage OR its “substantial equivalent” solely as a union between a man and a woman.  That bill would amend Article I of the Pennsylvania state Constitution – the Declaration of Rights section – to take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  Here’s the constitutional amendment as written in HB 1349:

“Marriage is the legal union of only one man and one woman as husband and wife and no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Until the spring of 2012, 31 states across the country had created constitutional amendments to outlaw marriage or anything that looks like marriage between same-sex couples. The last successful attempt at this form of discrimination occurred by referendum in North Carolina in the spring of 2012; all other attempts since then to deny marriage equality have failed.

Marriage equality however has had many successes since then. Three states – Delaware, Rhode Island, and Washington – either passed a referendum OR legislation legalizing marriage equality following North Carolina’s referendum. One state – Minnesota—is expected to pass their marriage equality bill today; note, this is only 6 months after the voters in Minnesota by referendum killed their proposed same-sex marriage ban.  And one state – Colorado – passed legislation recognizing civil unions even though they have a constitutional ban on same-sex marriage.

Instead of moving forward, right-wing legislators would like to have Pennsylvania join the 31 other states that constitutionally ban-same sex marriages and/or other legal forms of relationships such as domestic partnerships and civil unions.  These Pennsylvanian legislators are making their fourth attack on same-sex couples and on unmarried people – gay or straight.  If HB 1349 passes, Pennsylvania for the first time in its history would enshrine and mandate discrimination into the state Constitution.

This amendment would take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  The way this amendment is written would affect all unmarried couples, victims of domestic violence if they are not married to their abuser, and could threaten Pennsylvania’s anti-discrimination laws

Effect on All Unmarried Couples – Gay or Straight

Currently, Pennsylvania statute recognizes only marriages between one man and one woman.

Pennsylvania does not recognize either (1) same-sex marriages or (2) civil unions, domestic partnerships, or any other coupled-household status—whether entered into by same-sex or opposite-sex couples.  Those affected by this amendment would therefore, for example, include senior citizens who live together but are not married because of economic considerations, couples who believe they have a “common law marriage” (which is no longer recognized in Pennsylvania), and gay or straight couples who have any type of intimate relationship.

It could also threaten the lives of unmarried domestic violence victims and allow unmarried individuals to be discriminated against in housing, employment, and public accommodations.

Effect on Domestic Violence Victims

In 2004, Ohio passed their discriminatory anti-marriage constitutional amendment, which was quickly and unexpectedly used to deny protections to unmarried victims of domestic violence.  Here’s what happened.  Almost immediately, unmarried batterers argued that since they were not married, Ohio could not enforce their domestic violence law because that was treating their relationship with their partner as “equivalent to marriage.” The 2nd District Court of Appeals in Ohio agreed and ruled that the Ohio domestic violence law runs afoul of the “Defense of Marriage” amendment, passed by voters in 2004, and does not apply to “a person living as a spouse.”  As a result, unmarried defendants, who could have faced felony domestic violence charges, only faced misdemeanor assault charges.    It took several years for the Ohio Supreme Court to reverse this ruling.  In the interim, unmarried women were at the mercy of their batterers in several counties in Ohio.

The Ohio amendment is very similar to that of the one proposed for Pennsylvania.   In Ohio, by providing protection to “persons living as spouses,” the domestic violence statutes created a legal status for cohabiting relationships that is “equivalent to a marriage,” according to the appeals court. The appeals court decision in Ohio then denied protection from abuse to unmarried individuals – gay or straight – because the domestic violence law gave legal standing to an unconstitutional relationship – that of an unmarried couple. The courts argument overturning these domestic violence protections utilized similar language found in Pennsylvania’s HB 1439, which states that “no other legal union… or the substantial equivalent thereof shall be valid or recognized.”

We have no way of knowing how the courts would rule on a similar argument should this amendment pass and become part of Pennsylvania’s Constitution.  Who knows if Pennsylvania’s Supreme Court would protect the victim or allow batterers to circumvent Pennsylvania’s Protection From Abuse (PFA) law?  We need to protect all people from domestic violence and sexual assault.  Passage of this amendment could deny the protection offered by Pennsylvania’s domestic violence and protection from abuse laws; it could even risk the very lives of unmarried people–gay or straight–because this constitutional amendment denies the rights, privileges, and protections of law to people who are not legally married or who have a relationship that is “functionally equivalent” to traditional marriage.

Effects on Employment, Education, Housing, and Public Accommodations

It also looks like current and proposed employment, education, housing, and public accommodations anti-discrimination laws at both the state and local levels might be jeopardized for unmarried individuals.  Discrimination based on marital status and family responsibilities is unlawful under a variety of existing laws. With a few exceptions, under current state and federal law, people who experience this form of discrimination must fit their claims into an appropriate legal theory—as discrimination based on gender, a violation of family and medical leave laws, or another legal theory.  In addition, many municipalities throughout Pennsylvania have passed or are considering ordinances that would make it illegal to discriminate in employment, housing, and in some cases, public accommodations specifically based on sexual orientation, gender identity and marital status.   Will the state courts, the PA Human Relations Commission, or local Human Relations Commissions be able to enforce these laws if Pennsylvania’s constitution has been amended to require unmarried couples to be treated differently from married couples?  We do not know.  Passage of HB 1439 as a constitutional amendment could put all of these protections at risk since any person, company, or school could argue that their business is mandated to deny employment, hiring, and benefits to any person who is not married.

Civil Rights Denied, Reiterated

Last, but not least, exclusion, discrimination and inequality are not the principles this state was founded upon. This discriminatory “Marriage Protection Amendment” denies unmarried heterosexual, lesbian, gay, bisexual and transgender families the protections and fairness they deserve. Heterosexual married couples and their families are afforded more than 1,000 legal protections and economic benefits provided through state and federal law, benefits and protections that are currently inaccessible to unmarried couples.  Passage of this amendment would therefore subject same-sex couples and their families to exclusion, discrimination and inequality.

The proposed amendment could also take away existing legal protections for committed long-term couples and their children, such as second parent adoptions, cohabitation agreements, co-parenting agreements, wills, living wills, powers of attorney, etc., regardless of their sexual orientation.

Gay and lesbian Pennsylvanians are our neighbors, co-workers, friends, and family member.  They pay taxes.  LGBT people should not be bullied.  They deserve the same rights, protections, and responsibilities that all residents desire and have.

Let’s all work to stop this bill now!  So I’m once again recommending that you keep up-to-date on this horrible bill as well as other LGBTQ legislation at  Equality Pennsylvania’s website.

March 21, 2013

Voting Rights for Felons and Ex-Cons

vote button

Voting Rights for Felons and Ex-Cons

Yesterday, a friend of mine called me.  She said that she had been talking to a woman whose partner had a felony record who had served his time for the crime.  Among the several issues they discussed was his frustration that he was no longer able to vote.  Like many people, my friend and the couple she was talking to me about all believe that once someone has been found guilty of a felony, they face a lifetime ban on their constitutional right to vote.

Since primary season is coming up in many places around the country and since most states have voter registration deadlines before their primary election day, I thought I’d provide some background information on this issue.

What is the myth?

Simply stated, the myth is that ex-cons cannot vote – once convicted and forever afterwards. There are at least two errors in this myth:

  • Except for a narrow category of crimes in Mississippi, disenfranchisement does not occur in any state if you are found guilty of a misdemeanor crime.  Even if you spend time in jail for that misdemeanor.
  • Voter disenfranchisement for people with a felony conviction differs by state.  Eleven states permanently disenfranchise some or all current and former felons from voting, but most don’t.

So it all depends on where you live. Here’s what I found out about state laws on this issue from the Brennan Center for Justice

Permanent Disenfranchisement for All Felons

Only four states – Iowa, Florida, Kentucky, and Virginia – permanently disenfranchise current and former felons from voting.  The only way for a person to have their voting rights reinstated is through an “individual rights restoration” process set up by each state.

Permanent Disenfranchisement for Some but Not All Felons

Seven states permanently disenfranchise some, but not all current and former felons from voting.

In Arizona, if someone is convicted of two or more felonies, the right to vote is permanently denied.

In the other six states in this category, you need to check your state law to determine which felony convictions permanently deny you the right to vote. Here’s a quick summary of these laws.

  • In Alabama, you can be permanently barred from voting if your crime is listed in their disenfranchisement list. If the conviction is a “moral turpitude” type of conviction, you can have your voting rights restored upon completion of your sentence and payment of fines and fees.
  • In Delaware, voting after incarceration can be reinstated five years post-incarceration unless the crime you committed is one among a list of crimes that permanently disenfranchises your right to vote.
  • In Mississippi, you permanently lose your right to vote if you are convicted of any of ten categories of crime, whether that crime is a felony or misdemeanor.  If your crime isn’t on this list, you can vote even while incarcerated.  Note, this is the only state that has a law that permanently bans voting for someone who has created a misdemeanor.
  • In Nevada, if someone is convicted of two or more felonies, the right to vote is permanently denied.  People convicted of violent crimes at any time are permanently barred from voting. Nevada will restore those rights if a pardon is granted or if the court where the conviction originally occurred restores those rights.
  • In Tennessee, if your crime is on the list of crimes that permanently bar you from voting, then you can only have these rights reinstated if you are pardoned.  For all other crimes, you can have your voting rights restored upon completion of your sentence, payment of fines and fees, and show that you are up to date on all child support payments.
  • In Wyoming, you can have your voting rights restored five years post-incarceration for first-time non-violent crimes.  All others are permanently disenfranchised unless pardoned by the Governor.

Voting Rights Restored Upon Completion of Incarceration, Probation, and Parole

Nineteen states – Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, and Wisconsin – restore your rights to vote upon completion of your sentence, which includes incarceration, probation, and parole.

In Nebraska, one additionally has to wait two years after completing the sentence before being allowed to vote.

In Washington state, you can lose your right to vote again if you haven’t paid your financial obligations after completing your sentence.

Voting Rights Restored After Incarceration and/or Probation

Five states – California, Colorado, Connecticut, New York, and South Dakota – allow you to vote once you have completed your sentence and/or probation.

In New York, those on probation can have their voting rights restored if they receive either a “Certificate of Relief from Disabilities or a Certificate of Good Conduct.”

Voting Rights Immediately Restored After Incarceration

Fifteen states – the District of Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah – immediately restore voting rights upon one’s release from jail or prison. There are no voting restrictions for people on parole or serving probation time.

No Restrictions on Voting for People with a Criminal Record

And just two states – Maine and Vermont – allow anyone otherwise eligible to vote regardless of criminal conviction to vote. Even while incarcerated, on probation, or parole.

Who is most likely to be impacted by this disenfranchisement?

According to the ACLU, people and communities of color are most often disparately impacted by felony disenfranchisement laws. There are over 5.3 million people in the United States that are barred from voting due to a criminal conviction.  The majority of these crimes are non-violent.

Of the 5.3 million disenfranchised, 1.4 million or 26 percent of people with a criminal conviction are African-American citizens.  Considering that black persons make up just 13 percent of the national population, one can immediately see that if you are Black, you are twice as likely to have your voting rights denied.  This means that one in 13 African-Americans across the country are being denied their right to vote.

The myth of an ex-con never being allowed to vote compounds this issue. As previously stated, many believe that once convicted, they can never vote again.

With a widespread belief in this myth as well as a lack of public education to refute it, more and more ex-cons are at risk of not regaining their right to vote. Since actual disenfranchisement disparately impacts people of color, this assumption exacerbates this form of discrimination.

In my opinion, little is done by the government, courts, and communities to educate people and communities about their voting rights when one has been sentenced for a crime.  Exceptions to this come from only a few, non-profit advocacy sources, including the ACLU, the Brennan Center for Justice, the Prison Policy Initiative, and the Sentencing Project.   There are others, but I believe that these four contain the best resources.

What do you need to do to get registered?

If your state is one of the states that do not permanently disenfranchise people who have completed their sentence (or if you live in Maine or Vermont which has no felony restrictions on voting), you should check out what your state law is regarding registering to vote.  The federal government has a website that has basic information on how to register and what the registration deadlines are by state.  It also has links to every state’s election office website where you can get details about state-specific requirements for voter eligibility.

If you know or believe that you have the right to vote in your state despite having a criminal history and receive a denial to vote when you attempt to register, you should check with an organization that provides legal services to people who have been incarcerated.  You can find a listing of these organizations by state here.  If your state isn’t listed, then the Prison Policy Initiative suggests that you contact one of the national groups that provide voter disenfranchisement assistance.

Once you get registered, GO VOTE!  It’s your right.

January 9, 2013

Meeting in New Delhi January 10, 2013 on Preventing Violence against Women

I have received a few emails from a friend in the last couple of weeks following the gang rape and death of the 23-year old female medical student in New Dehli. These emails have been a joint announcement with updates from PUCL-CFD – the People’s Union for Civil Liberties and Citizens for Democracy—about a planning meeting to discuss what needs to be done to prevent rape and other forms of violence against women in New Delhi and throughout India. Here’s the latest update for tomorrow’s first meeting.

Film Show on ‘Rape’ at PUCL-CFD meeting on 10th Jan.2013 and discussion how to prevent violence against women.

Dear friends,
PUCL (Delhi), in association with Citizens For Democracy, has organized a meeting on the subject “How to Prevent Rape and other forms of violence against women” to be held on 10thJanuary, 2013.

A film ‘NOW, I WILL SPEAK’ on RAPE shall be shown in the beginning. ‘Now, I Will Speak’ produced and directed by writer, film-maker and social activist, Sagari Chhabra is a documentary on rape. It deals with rape as a tool of political oppression, used by the police to displace villagers whose village is going under water, in the wake of a dam. It deals with Child rape and custodial rape. The film is a testimony of courage and encourages the survivors to speak out. It has been awarded by the International Association of Women In Radio and Television, and the NIFA ‘Award Of Excellence’ in production and direction. It is 40 minutes long and has a commentary in English with subtitles.
Discussion will follow the film to find out ways and means as how to achieve gender equality and justice for women.

Dr. Gopa Joshi, Shri Sanjay Parikh, Advocate, Ms.Shabnam Hashmi, Dr. Jugal Kishore and Ms. Sagari Chhabra form the panel of speakers. Justice Rajinder Sachhar and Shri Kuldip Nayar shall also contribute.

Programme is as follows:
Time & Date: 2 to 5 PM, Thursday, 10th January, 2013
Venue: Gandhi Peace Foundation, 223, Deen Dayal Upadyay Marg,
New Delhi-110002 (Ph.011-23237491, 23237493)

You are requested to make it convenient to attend.

Satyendra Ranjan
Secretary, CFD
(M) 9811999269

Shivakant
Secretary, PUCL (Delhi)
(M) 9868505324, 9811099532