A Hesitant Celebration of the Voting Rights Act’s 50th Anniversary

The 5th Circuit’s Ruling on Texas’s Voter ID Law is Welcome, but Not Enough

It was the best of times, and it was the worst of times.

It began slowly enough, with boycotts and bus rides and sit-ins and strikes, and built over time to the clamorous and inexorable crescendo of a beleaguered people fed up with centuries of voicelessness. It was a beautiful thing to behold.

But the fiefdoms of institutionalized racism fought back, with high-pressure hoses and attack dogs and cudgels and guns, leaving a host of martyrs in their wake: Jimmie Lee Jackson, James Reeb, Harry and Harriet Moore, Viola Liuzzo, Vernon Dahmer, and four little girls blown to pieces in a church while changing into their choir robes.

But in the end these martyrs and those who marched with them achieved what was thought by many to be unthinkable: the passage of what was rightly heralded as the singlemost effective piece of civil rights legislation in American history.

As we celebrate the Voting Rights Act’s 50th anniversary, we wish we could say that the landscape had changed. But we’re still lobbing tear gas grenades at peaceful protesters, still killing unarmed black men in the streets, and still doing our level best to keep people of color out of the voting booth.

In 2013 the Supreme Court ruled in Shelby v. Holder that “history did not end in 1965” and struck down portions of the Voting Rights Act it deemed outmoded and unnecessary. Specifically, it removed the “preclearance condition” by which nine states that had systematically disenfranchised black voters were required to submit their voting laws to the federal government for approval before they could be enacted. Texas was among them.

Almost immediately after the decision was handed down, Texas began enforcing the harshest voter ID law in the country that at a stroke disenfranchised 600,000 black and Latino voters. It became instantly clear that the Supreme Court was correct in one sense: history hadn’t ended in 1965. But it also hadn’t changed much.

On Wednesday the 5th Circuit Court of Appeals recognized that Texas’s voter ID law was discriminatory and violated the Voting Rights Act. This was a welcome victory for the hundreds of thousands of Texans who had seen their voting rights stripped away in the last election. But the Court stopped short of finding that the law intentionally discriminates, and the preclearance condition is still absent from federal law. The ruling came too late, and didn’t go nearly far enough.

That the Voting Rights Act passed at all was just shy of a miracle. But we don’t quite require a miracle to restore it to its former glory. All we require is leadership. Congress must work to reinstate the preclearance condition, which is self-evidently every bit as necessary as it was in 1965. Every American’s voice deserves to be heard.

Mark Humphries is the Writer and Content Developer for the ACLU of Texas.

Discrimination is not a Houston Value

The Most Diverse City in the Country Needs an Equal Rights Ordinance

Houston is the most diverse city in these United States. Just how diverse? We have no racial or ethnic majority. We have one of the largest—and quite frankly, one of the most architecturally breathtaking—Hindu temples in the country. Houston hosts the only livestock show and rodeo where you can hear over 100 languages spoken. We have the highest concentration of refugees in the U.S, from 78 countries around the world. And this year’s Pride Parade boasted a crowd 700,000 strong.

That’s just shy of 10 Reliant Stadiums at capacity.

Given our lively, kaleidoscopic diversity, one would think non-discrimination would be prominently enshrined in municipal law. And it was, for a time, until forces opposed to Houston’s Equal Rights Ordinance (HERO) secured a victory in the Texas Supreme Court to force it onto the ballot in November.

The fight to keep HERO alive is about Houston values—and the principle that everyone should be treated equally and fairly under the law. In order to see that the ordinance remains on the books, we must first understand exactly what it does.

First of all, the anti-discrimination ordinance protects all Houstonians from discrimination, whether they’ve been singled out because of their sex, race, sexual orientation, religion, or gender identity. It protects veterans who don’t want to be discriminated against because they served their country. It protects pregnant women, the disabled, and the elderly. And without it, a Houston company’s best and most conscientious employee can be legally fired simply because he or she chooses to come out to co-workers.

Of course, some of these categories are protected by other laws, but HERO provides a local venue for resolving discrimination complaints that is timely, effective, and affordable. Without the benefit of HERO, those who are fired or denied housing or public accommodations simply for being who they are literally have to make a federal case out of it. More often than not this process requires a lawyer, and the time it takes to right the wrong—which is by no means a foregone conclusion—is usually measured in years.

While Houston is proud of its diversity, discrimination remains a reality: Between the day HERO was passed and the day it initially went into effect, 54% of the discrimination complaints lodged with the Office of the Inspector General related to race, 17% to gender, 15% to age, and 4% to sexual orientation or gender identity. Our gay, lesbian, and transgender neighbors need the anti-discrimination protections the ordinance brings, but it simply isn’t true that its scope is limited to them. The Houston Equal Rights Ordinance protects everyone.

HERO protects you.

This is why HERO enjoys widespread support from over 80 current or former city officials, from community organizations and non-profits, and over 70 local faith leaders. It has been endorsed by the Greater Houston Partnership, the Houston Association of Realtors, Rice University, the League of United Latin American Citizens, and the NAACP.

And no wonder. Diversity is one of Houston’s greatest strengths, and it’s essential we do everything in our power to preserve and protect that diversity. HERO promotes what Houstonians value most: fair treatment for all, no matter who you are.

Supreme Court 101: What the Marriage Equality Ruling Teaches Us About Democracy

Now that the dust has settled and the hand-wringing over the U.S. Supreme Court’s decision in Obergefell v. Hodges seems mostly to have subsided, it’s worth reflecting on what the case means. In the last month, we’ve heard from pundits and politicians of every stripe, who rushed to explain the decision’s import. For some, the recognition of same-sex marriage in all fifty states ushered in a new era of equality, while others warned that it heralded the end of the Republic.

Of course, the marriage ruling was certainly historic—no one would contest that—but it wasn’t extraordinary. You wouldn’t have known it to listen to the talking heads on TV, but the Supreme Court didn’t do anything unusual when it ruled that same-sex marriage bans violate the Constitution. To understand why, we waded through the hype and the history to get to the heart of the Supreme Court’s role in our constitutional democracy.

Did the Supreme Court ignore the will of the people?

The stakes are too high and the issue too important to simply cede the will of the people to unaccountable justices. –Rick Santorum on Obergefell v. Hodges

No matter how much the Supreme Court seeks to sugarcoat its bitter pill of tyranny, the people of the South will not swallow it.Marvin Griffin, former governor of Georgia, on Brown v. Board of Education

The Supreme Court’s job is to interpret the Constitution, and the Constitution is the supreme law of the land. At its heart, the Constitution is a series of protections that keep government from infringing core freedoms. Some freedoms every American can recite—like freedom of speech, assembly, and religion. Others like the right to be treated equally by government actors and the right not to have liberty abridged without due process may be less well known. But if the majority passes a law that violates any of those freedoms, it’s the Court’s job to strike it down.

So yes, sometimes the Supreme Court ignores the will of the majority in order to protect the constitutional rights of individuals.

This is a feature, not a bug.

But how can the Supreme Court ignore centuries of tradition?

I am disappointed the Supreme Court today chose to change the centuries-old definition of marriage as between one man and one woman. –Rick Perry, on Obergefell v. Hodges

To many people this decision is contrary to a way of life and violates the way in which they have thought since 1619.Cavalier Daily (University of Virginia newspaper) on Brown v. Board of Education

Actually, the Supreme Court does this all the time, once we all realize that what we’ve been doing for centuries violates those rights the Supreme Court is entrusted to protect. Societies evolve, the authors of the Constitution knew that, and they composed a document that would allow for that development. For example, the Constitution forbids “cruel and unusual punishment”. Once upon a time that did not include pillorying, flogging, branding, and chopping people’s ears off.

Okay, fine…but where can I find marriage equality in the Constitution?

[The Court] fabricated a new constitutional right in 2015. –Texas Attorney General Ken Paxton, on Obergefell v. Hodges

The justices produced a non-text-based and generalized right.Catholic Education Resource Center, on Griswold v. Connecticut (recognizing a constitutional right to decide whether and when to have a child and striking down a ban on contraception)

You can’t. But what you will find in the Constitution are the rights to equal protection and due process, which Justice Kennedy cited in his opinion on marriage equality. The Supreme Court didn’t pluck a brand new right out of thin air that allows same-sex couples to marry, but instead applied the rights already guaranteed by the Constitution to marriage bans that were passed in just the last two decades.

I’m fed up with these activist judges. How do you know they didn’t get it wrong?

This is judicial activism at its worst. –Ted Cruz, on Obergefell v. Hodges

[This case] encourages Americans to bypass the ballot and seek to press their political agenda in the courts.J. Jarvie Wilkinson III, on D.C. v. Heller

“Judicial activism” is a term people generally use when they don’t agree with a Supreme Court decision, while “judicial restraint” is the one they use when they do.

But the fact of the matter is that whether they’re exercising “activism” or “restraint”, the Supreme Court does get it wrong sometimes. They got it wrong in Korematsu v. U.S. when they decided that rounding up Japanese Americans for being Japanese was perfectly constitutional. They got it wrong in Minor v. Happersett when they denied women the right to vote. And they got it unanimously wrong in Schenck v. U.S. when they decided that the peaceful distribution of anti-war leaflets was a crime. (A bit of trivia: Schenck brought us the now-famous refrain of “shouting ‘fire’ in a crowded theater”, which refers to that peaceful distribution of anti-war leaflets and not, as one might think, to shouting “fire” in a crowded theater.)

Aha! I knew it! Since they sometimes get it wrong, can’t we just ignore them?

One thing I am angry about is this notion of judicial supremacy, where if the court makes a decision, I hear governors and even some aspirants to the presidency say, ‘Well, that’s settled, it’s the law of the land.’ No, it’s not the law of the land. –Mike Huckabee, on Obergefell v. Hodges

I do not recognize, I have never recognized, I cannot recognize that what the Supreme Court says is the law of the land. –Virginia Gov. Lindsay Almond on Brown v. Board of Education

No, you can’t. The Constitution is uncontestably the supreme law of the land, and since the Supreme Court is tasked with interpreting what the Constitution says, Supreme Court decisions are in fact the law of the land.

That doesn’t mean that debate ceases or that the political process is at an end. Sometimes, as debate continues, the Court changes its mind. This can take some time. In Plessy v. Ferguson, for example, the Court decided in 1896 that “separate but equal” racial segregation was constitutional, and only changed its mind sixty years later when it handed down Brown v. Board of Education.

In other cases, we amend the Constitution itself. This is intentionally very hard to do, and requires that just about everybody agree to it. This is how women gained the right to vote in the U.S., incidentally. The Court decided in Minor v. Happersett that it was constitutional to deny women the right to vote, which was the law of the land until the 19th Amendment was passed in 1920.

Balderdash! Can’t we just get rid of the Supreme Court and save some money?

If we want to save some money, lets just get rid of the court! –Bobby Jindal, on Obergefell v. Hodges.

First of all, the Supreme Court doesn’t cost that much money, and this year they even volunteered to cut their own budget, which isn’t something you see all that often in Washington. (Charmingly, last year’s budget included the replacement of an air conditioning system that was over seventy five years old, and the only person who knew how to repair it was a retiree in West Virginia.)

Secondly, getting rid of the Supreme Court would mean shredding the Constitution into itty bitty bits.

Third…do you really want to get rid of the Supreme Court? Really? Are you sure there’s nothing you might need the Court’s protection for? What if a judge decides to throw you in jail for filming on a public sidewalk? What if someone sues you over your Yelp review? What if the cops decide to arrest you just for knowing what your rights are? What if the town you live in decides to ban all guns?

The system isn’t perfect, certainly. But sometimes all that’s standing between you and oppression are those “five unelected judges.”

Democracy in Action at Hood County Book Banning Hearing

County governments almost never find themselves on the front lines of constitutional struggles, but you wouldn’t have known that had you attended the Hood County Commissioners’ Court hearing last Tuesday morning. At issue was the attempt by some local residents to remove from the public library two LGBT-tolerant children’s books, Princess Boy and This Day in June. After hours of impassioned debate, in the end what I witnessed was a big victory for the First Amendment over the threat of censorship.

In the wake of the Supreme Court’s decision on marriage equality, LGBT issues are a contentious topic in the great state of Texas, and Hood County is no exception. The Hood County clerk, for example, made national headlines within the last month after being sued by a same-sex couple over her refusal to issue them a marriage license. Against that backdrop, the members of the Commissioners’ Court prepared for a long and vigorous debate, moved the item to the top of the agenda, and removed the time limit so that every resident of Hood County who wanted to could be heard.

I’ve seen sensationalist headlines describing conservative Christians “storming” the county meeting to try and remove the books, but that’s not quite what I witnessed. In fact, time and time again, residents approached the podium, asserted their Christian values, their deep roots in Hood County, their understanding of why someone would want the books censored, and then turned around and affirmed their neighbors’ constitutional right to have access to the books. The speakers weren’t just ticking off a list of politicized talking points. Rather, one by one the people of Granbury, Texas gave impassioned personal testimonies in defense of their venerated First Amendment.

One woman holding a stack of children’s Bible stories explained how one parent’s right to check out My Princess Boy was the same right that allows her to check out a children’s book explaining Noah’s Ark. A 96 year-old gentleman approached the panel on crutches, said he was “the most conservative person in the room,” and then pleaded with the court not to give in to censorship. Another resident with fire in her eyes and a thick Texas twang demanded that the books stay right where they are because she has a son who is “as gay as the day is long, and he is MY princess boy.”.

After three long hours and a seemingly endless list of speakers, the Commissioners’ Court made its ruling. Conscious of their grave civic responsibility, the commissioners explained that the books had to stay because each one of them had pledged to uphold the Constitution, and if they weren’t prepared to do just that then they would have to find a different job.

We’re told that the next fight for LGBT equality will be over “religious refusal” laws. But listening to the impassioned voices of the residents of Granbury, as well as to the commissioners entrusted to govern them, I’m confident that most Americans already know that the Constitution, much like the public library, has room enough for everyone.

Joe Swanson is a community organizer for the ACLU of Texas.

Banning Books in Texas

Some residents in Granbury, Texas, are lobbying to remove Princess Boy and This Day in June from the Hood County Library because they “indoctrinate children to the LGBT lifestyle” and “promote perversion.” Hood County Library Director Courtney Kincaid decided to keep the books on the shelves, but next week the commissioners’ court will meet to discuss whether or not to reverse her decision.

Book banning is one of the worst crimes one can commit against the human intellect, and undermines the free exchange of ideas that is one of the pillars of our democracy. We’ll be keeping a close eye on the commissioners’ court’s deliberations, but in the meantime, we thought we’d take a quick look at other books that have been either banned or challenged in Texas.

Farenheit 451
Ray Bradbury

Farenheit451TNWhile banning a book about book burning tests the limits of irony, in 2006 Ray Bradbury’s dystopian novel was challenged in Texas and banned elsewhere throughout the country. In Conroe, the book was challenged due to its use of profanity, with one parent saying, “it shouldn’t be in there because it’s offending people…If they can’t find a book that uses clean words, they shouldn’t have a book at all.” The possibility that banning the book might be more offensive than the language it contained does not appear to have been a consideration.

The Working Poor: Invisible in America
David Shipler

The Working PoorTNTerrified of the risk of teaching high school children about the lives of Americans living in poverty, this non-fiction work by a Pulitzer Prize winner was challenged due to an anecdote of one woman’s experience with sexual abuse as a child and abortion during high school. The Working Poor was one of several books suspended last September in Highland Park High School during National Banned Books Week.

Esperanza Rising
Pam Muñoz Ryan

Esperanza RisingTNThe award-winning novel set in post-Revolutionary Mexico and Great Depression Era Southern California about 12-year old Esperanza Ortega has recently been challenged in Texas and North Carolina. One parent felt the novel “promoted illegal immigration” and was not age appropriate, while other parents were upset that the book addressed issues like racism, immigration, and “ethnic class struggles,” as though this were not, you know, what literature is for.

And Tango Makes Three
Justin Richardson and Peter Parnell

And Tango Make ThreeTNTwo very real male chinstrap penguins named Roy and Silo raised a chick named Tango together, and the authors turned it into this charming children’s story. And Tango Makes Three topped the lists of banned books in the United States and in Texas over the last few years. Reasons cited were that this book has anti-family values and “promotes the homosexual agenda.”

Brown Bear, Brown Bear, What Do You See?
Bill Martin Jr.

Brown BearTNIn what is perhaps the most bizarre entry on this list, in 2010 the State Board of Education removed Bill Martin Jr.’s Brown Bear picture book series from the third grade curriculum, because someone else named Bill Martin happened to write a book entitled Ethical Marxism: The Categorical Imperative of Liberation. This in spite of the fact that Bill Martin Jr. died four years before Bill Martin’s book was even published.

Santa Claus Around the World
Lisl WeilSanta ClausTN

This non-fiction children’s picture book teaches children how Christmas is celebrated in other parts of the world. But because it included Krampus, a horned and beastly figure from a centuries-old German Christmas tradition, some parents tried to put it on the chopping block.

The Adventures of Captain Underpants
Dav Pilkey

Captain UnderpantsTNWhile most grade school boys embrace gross and irreverent stuff, this 11-part series was the most challenged of all books in 2012, for its offensive language, unsuitability for its age group, and violence. The series includes references to undergarments, toilets, bodily excrement, and mischievous rebellion against authority, and naturally it is beloved by its target audience of elementary school-aged boys.

Leprechauns Don’t Play Basketball
Marcia Thornton JonesLeprechaunsTN

Like the Harry Potter series, the references to magic and wizardry in Leprechauns Don’t Play Basketball resulted in the book being challenged in Nederland ISD.

Katy Perry
Sarah TieckKaty PerryTN

The biography of pop star Katy Perry was challenged for being offensive to religious sensitivities in Eagle Mountain Saginaw ISD during the 2011-2012 school year. Over what we will assume were the vigorous objections of the student body, the book was ultimately retained.

Paxton’s Disastrous Doubling Down

Hot on the heels of Governor Abbott’s disingenuous lead, last Sunday Texas Attorney General Ken Paxton issued a statement regarding the Supreme Court’s ruling in Obergefell v. Hodges that is functionally incoherent, willfully misleading, and legally wrong. Were this merely more bluster from an extremist state official unsettled by Friday’s happy turn in the course of American history, we could comfortably ignore him. However, Paxton’s recklessness could lead to ruinous consequences for public officials who might heed his bad advice. For now, it appears as though they will not.

According to Paxton, county clerks in Texas may refuse to issue marriage licenses to same-sex couples—and judges and justices of the peace may refuse to conduct marriage ceremonies—if doing so would violate their sincerely held religious beliefs. To support that position, Paxton surgically excises the one line in the Obergefell ruling that—at a first and very perfunctory glance—seems to give him cover: “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Of course, that’s not all the ruling says; that’s not even all that particular paragraph of the ruling says, and Paxton seems to place all his hopes in the possibility that we might not bother to read the rest: “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” In other words, Americans everywhere still enjoy their fundamental and inviolable right to religious liberty, and may exercise that right to express objections to same-sex marriages as loudly and as often as they like. The first duty of those who serve the State, however—including county clerks, judges, and justices of the peace—is to uphold the law.

And Obergefell is the law.

Paxton’s willful misreading of the Obergefell decision allows him to manufacture a “fundamental dilemma” and a “tension” between the right to equal protection and the right to religious freedom, and then uses that specious analysis to provide clerks and judges with irresponsibly erroneous legal advice. Paxton informs local officials that they may shirk their duties, admits that doing so exposes them to civil litigation, but promises that legions of attorneys stand ready to defend them should they choose to go the distance in the courts.

What Paxton fails to say is that that distance will be both very short and very costly, once those cases are inevitably lost and damages are due. State officials might briefly take comfort in the fact that the Attorney General will do “everything [he] can” to be a “public voice” for those involved in litigation, at least until they realize that Paxton has set them up to stand in front of a target his own office will skillfully avoid.

Thus far, few have been duped by Paxton’s bombast. Legal analysts are seeing the Attorney General’s statement for the untenable temper tantrum that it is, and for the most part local officials have decided to uphold the law, even over their own personal objections. In fact, most Texas counties are doing the right thing, and we are confident that the rest will inevitably understand where their duty lies.

But we’re still in the early days of post-Obergefell America, and Texas state officials have made it clear that they will continue to use trumped-up religious freedom arguments to sustain their own anti-LGBT bigotry. Ultimately they will fail. Texans have already made it quite clear that they don’t share Abbott’s and Paxton’s appetite for discrimination, and we are smart enough to know that religious liberty and human equality need never be at odds with one another.

Our Constitution is big enough for everyone.

Marriage Equality Comes to Texas, But There is Still Much to Do

Today’s historic Supreme Court ruling in Obergefell v. Hodges represents a major breakthrough in the fight against LGBT discrimination in America.  At long last, loving couples throughout the nation can delight in the dignity of a marriage fully recognized by the state and fully protected by the law.

Unfortunately, John Arthur did not live long enough to witness the extraordinary transformation his marriage to Jim Obergefell has wrought upon our country.  Arthur and Obergefell had already lived together in a committed relationship for two decades when the Supreme Court struck down the federal Defense of Marriage Act, at which point the two decided to marry.  At the time, the marriages of same-sex couples were not recognized in the state of Ohio, and so the two flew to Maryland to wed.  By then, however, Arthur’s amyotrophic lateral sclerosis (ALS) had deteriorated to the point to where he was too weak to leave the plane, and thus he and his lifelong partner celebrated their nuptials while still aboard, on the tarmac.  Tragically, John Arthur passed away on October 22nd, 2013.

The ACLU is proud to have participated in the dismantling of DOMA, and just as proud to have represented Jim Obergefell in his momentous quest to bring marriage equality to every state in the nation.

Here in Texas, however, there remains much to do.

While the Supreme Court ruling means that LGBT couples may both marry in Texas and enjoy all of the rights, responsibilities and privileges of being married in Texas, we fully expect Attorney General Ken Paxton and a number of the state’s county clerks to resist the Court’s decision for as long as they are able to do so.  They will not be able to hold out forever, of course, but in the meantime, the ACLU of Texas has set up a website and a toll free number (1-888-503-6838) that will provide LGBT couples with information concerning their rights and a forum for reporting any acts of state discrimination they might endure.

And of course, we must recognize that the fight against LGBT discrimination does not end with today’s victory for marriage equality.  While an overwhelming majority of Texans oppose LGBT discrimination, throughout most of the state, LGBT Texans can still be fired, evicted, and denied services simply for being who they are.  We will continue to work towards introducing non-discrimination ordinances city by city, in the hopes of ultimately passing a statewide NDO.

For now, however, we toast all LGBT couples who plan to celebrate their weddings over the coming weeks.  And if you have questions about your rights, or feel you have been discriminated against, do not hesitate to visit our site or call us at 1-888-503-6838.

The Best and Worst of the 84th

Governor Abbott spent the weekend clearing his desk of all pending legislation, and thus we can finally close the book on Texas’s 84th legislative session. This year’s session wasn’t especially unusual, in that it saw its fair share of “chubbing,” glad-handing, horse-trading, and fist fights. Also typical was the sheer volume of threats leveled against Texans’ civil liberties. Thankfully, most of the worst proposals failed to make it onto the books—while some of the better ones did.

Here’s a rundown of some of the issues that mattered for civil liberties:

LGBT Rights:  The Texas legislature faced a serious quandary this year. On the one hand, some of our politicians really, really despise the idea of LGBT equality—more now than ever, with the Supreme Court’s marriage equality decision due any day—and are terrified of the possibility that it will become a reality. On the other, Indiana’s “religious refusal” debacle demonstrated just how catastrophic state-sponsored discrimination is for business.

Against that backdrop, LGBT rights fared well this session. Our LGBT Equality Coalition rose to the challenge, and Texas business leaders spoke out against discriminatory laws. Legislators introduced more than 20 bills and two constitutional amendments designed to enshrine discrimination into state law, but in the end none of them passed.  The only LGBT-related bill to become law (signed by Abbott with great fanfare) merely reaffirms that clergy can refuse to perform marriages that violate their religious beliefs, a right already guaranteed by the First Amendment.

Reproductive Rights: Not satisfied with passing the infamous HB 2 in 2013 (now before the Supreme Court) and the closure of more than half the states abortion clinics, extremist legislators tried to double down.  They introduced measures to eliminate an exception to the state’s 20-week abortion ban for severe fetal abnormalities and to block insurance from being used to pay for the termination of a pregnancy. While both of those measures failed, others did not.

In a particularly mean-spirited attack, the legislature revamped the “judicial bypass” process, making it even more difficult for young women who are victims of neglect, abuse, or sex trafficking to access abortion services. To add insult to injury, politicians also blocked access to breast and cervical cancer screenings for patients of Planned Parenthood, and diverted more state funding to discredited “crisis pregnancy centers,” whose literature has been described by the Texas Medical Association as “needlessly graphic” and “factually inaccurate.”

Criminal Justice:  Groups from every segment of the political spectrum united to reform the state’s criminal justice system. The Smart-on-Crime coalition helped enact a series of measures designed to streamline the penal code, reduce recidivism, improve the reintegration process, and give former convicts a better chance for success in life after prison. Disadvantaged school children need no longer fear a fast track to the prison system, now that truancy is no longer a crime. School police officers will receive specialized training to help them better meet the needs of the students they serve and protect. Prisoners destined for solitary will now undergo mental health screenings.

Immigration: The rights of the undocumented fared better than one might have expected in the current political climate.  For one, the fact that Texas DREAMers will continue to have access to in-state university tuition was welcome news. Additionally, two attempts to wrest immigration enforcement from the federal government were thwarted: the Interstate Border Enforcement Compact, designed to allow member states to coordinate border control efforts independent of the federal government, and the Sanctuary Cities bill, which would have required local law enforcement entities to enforce immigration law at the expense of their own local priorities.

However, one immigration measure that enjoyed broad support in the legislature was passed into law. A sweeping border protection bill that costs hundreds of millions of dollars, HB 11 shows that our legislature only embraces small government and fiscal conservatism when it concerns tax rates and deregulation, but not so much when civil rights, police overreach, mission creep, and government surveillance are on the table. The law sets up a centralized surveillance center, allows for southbound checkpoints of American citizens still in the U.S., and implements a hiring surge of officers, which has proven a reliable method for fomenting corruption and abuse in law enforcement.

The bottom line: In spite of some victories for civil liberties this legislative session, lesbian, gay and transgender Texans can still be fired, evicted, or denied services in much of the state, regardless of whether the Supreme Court rules in favor of marriage equality. Texas women seeking abortion access find ever more obstacles in their path, with many more clinics forced to close if the Supreme Court refuse to step in. We still have one of the highest rates of solitary confinement in the country. Private prisons continue to clamor for more inmates, and the state still has heavy incentives to provide them. And legislators continue to push for proposals that would punish immigrants for seeking a better life.

The legislature reconvenes in 2017, and until then there is much work to do.

Will Texas State Officials Defy the Supreme Court?

“The oath of office I take says I support the laws and Constitution of the United States; it says that first.”

Dallas County Clerk John Warren
Dallas County Clerk John Warren
Thus spoke Dallas County Clerk John Warren when he announced that his office would begin issuing marriage licenses to same-sex couples in the event of a favorable Supreme Court ruling later this month. Warren likewise indicated that he would be prepared to act within an hour and a half of the ruling, and that he had already approved overtime for his staff in order to accommodate what would surely be unprecedented demand.

Other counties are following suit. Bexar County clerk Gerry Rickhoff has not only redesigned the license itself so that it does not address gender, but has also indicated that he is prepared to keep his office open 24 hours a day if necessary. And Travis County clerk Dana DeBeauvoir will be prepared to issue marriage licenses promptly, as she has done before.

Stan Stanart1
Harris County Clerk Stan Stanart

So we know Dallas, Austin, and San Antonio will be prepared to comply with a favorable Supreme Court decision on marriage equality the day it’s rendered. Unfortunately, however, same sex-couples who live in Houston—the state’s largest city and the most diverse in the country—might have to wait. Harris County Clerk Stan Stanart has stated that he will seek “guidance” from the state’s Attorney General before issuing marriage licenses to same-sex couples—and he’s made it perfectly and disturbingly clear that his reasons for preventing same-sex marriages are personal: “They’re destroying an institution, the institution of marriage.”

On the state level, politicians are reacting about as well as one would expect from a group of people who celebrate their opposition to marriage equality with slices of hate cake. The fact that their statements are predictable, however, doesn’t make them any less alarming. Representative Cecil Bell, who authored several retrograde anti-LGBT measures in the last legislative session, has stated that it would be “disappointing” to see county clerks “acting outside of Texas law,” suggesting that compliance with a Supreme Court ruling were somehow illegal. Naturally Bell added that such a ruling “is not an edict that sweeps across the land,” although that is precisely what a Supreme Court ruling does.

Ken Paxton
Texas Attorney General Ken Paxton

Like Bell, Attorney General Ken Paxton, whose “guidance” Stan Stanart and other clerks may seek on decision day, has stated publicly that he is “committed to defending the Texas Constitution and self-government by Texans”—the subtext being that he intends to pursue bureaucratic obstructionism if he finds the Supreme Court decision unacceptable to him and, apparently, “the will of the people of Texas.” This is in spite of the fact that polls clearly show that a strong majority of Texas voters believe that discrimination against the LGBT community is a problem.

Let the Attorney General and county clerks throughout the state know that you want them to do what their oaths and their duties already bind them to do: to obey and uphold the law of the land.

Scattershot Public Defender System in Idaho Comes Under Fire

Innocent unless proven guilty…

These words are the bedrock of our criminal justice system. Yet for many Americans who are currently navigating the justice system maze, this fundamental principle is but a dream—a reminder of what could be, if only they had the money to pay for a lawyer with the time and resources to represent them effectively.

Adequate representation in court is mandated by law. Before the government can take away a person’s liberty, the Sixth Amendment requires that the case against the defendant be put to the test. It is largely up to criminal defense attorneys to make sure the state fulfills that requirement.  The failure of the State of Idaho to ensure all public defenders there  have the resources they need to do so in an effective way puts the entire system—not to mention the liberty and livelihoods of criminal defendants—in jeopardy.

When these same issues arose in Michigan and New York in recent years, the ACLU stepped in and sued both states for their longstanding failure to provide public defenders with the tools and resources they need to represent their clients in a meaningful way.  Both cases resulted in wholesale changes to public defense delivery in those states.  And in 2013, a federal court ruled that the structural flaws of the public defense systems in two municipalities in Washington deprived indigent criminal defendants of their Sixth Amendment right to counsel.

Most recently, The ACLU, the ACLU of Idaho, and the law firm Hogan Lovells filed a class action lawsuit against the state of Idaho asking the court to force the state to fix its unconstitutional system of public defense.  The case was brought after years of advocacy and alternative efforts at encouraging state officials to address the problem with real solutions—and real funding.

The process began in 2010, when the National Legal Aid and Defender Association released a report analyzing the representation provided to criminal defendants in Idaho’s trial courts. The report found that “none of the public defender systems in the sample counties are constitutionally adequate.” Despite this disturbing reality, the Idaho Legislature has failed to make the necessary changes to ensure that anyone prosecuted for a crime in Idaho—regardless of income level—has access to an attorney with the time, training, and resources to represent them effectively.

Five years later, nothing has changed.

Low-income defendants are still unrepresented at their initial bail hearings, resulting in many pleading guilty and suffering lifelong consequences just because they felt they had no other realistic options, and in others spending extended time in pretrial detention. Public defenders are so overloaded in many counties that defendants are unable to communicate with their attorneys on a consistent basis, leaving them in the dark regarding developments in their own cases. Worst of all, without adequate resources, many public defender offices lack the resources needed to thoroughly investigate many cases, if at all, leading many defendants—even while proclaiming their innocence—to simply plead guilty rather than risk going to a trial where the playing field is tilted in favor of a better-funded prosecution.

In January 2015, even Idaho’s Gov. “Butch” Otter acknowledged that “the courts have made it clear that our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.” Despite the governor’s admission, and the various committees and commissions that have been formed to study the issue over the last few years, the reality is that some of the most vulnerable people in Idaho continue to fall victim to this failing system.

It is the state’s responsibility to ensure that people charged with crimes within its borders are given a full and fair opportunity to defend themselves in court—and that can only be achieved when public defenders have access to the training and resources they need to zealously advocate on on all of their clients’ behalf.  As the U.S. Supreme Court reminded us more than 50 years ago, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

ACLU and Hogan Lovells file a case in Idaho to protect the Sixth Amendment