660 Gasps for Breath, Then Death

July 24th, 2014 No Comments   Posted in ACLU Nationwide
By Brian Stull, ACLU Capital Punishment Project

We still don't know where the drugs came from.

We know they used midazolam and hydromorphone. We know the combination was experimental. And now we know that instead of working, the drugs took nearly two hours to kill Joseph Wood, as he snorted and gasped for air 660 times.

Within a couple hours of Mr. Wood's death, the state of Arizona started damage control. Last night, Governor Jan Brewer called for an investigation into why the execution had taken so long, but she also released a statement saying: "by eyewitness and medical accounts he did not suffer."

That's not what the reporters who were in the room have written. "It was very disturbing to watch... liked a fish on shore gulping for air," Troy Hayden told The Arizona Republic.

One hour and 57 minutes is horrifically long, even when compared to the recent botched execution of Clayton Lockett, who writhed in pain for 45 minutes while the state of Oklahoma struggled to kill him in May.

It's time to ask the question: How is it possible that, in 2014, state after state is utterly failing at lethal injection? How can it be, given modern medicine, that it could take hours instead of minutes for states to kill someone?

The answer is that the death penalty simply has no place in this country. As method after method of state-sponsored killing has been deemed barbaric and archaic, states are left scrambling to invent new ways to execute.

Lethal injection started as a seemingly more humane alternative to the gas chamber, the electric chair, and firing squads. But as companies both in the U.S. and in Europe have refused to let the drugs they produce be used in executions, lethal injection has become what is essentially medical experimentation, with novel drugs and doses leading to botched execution after botched execution.

Lethal injection is not modern medicine. Executioners do not have proper training, leading to some prisoners being conscious but paralyzed as they slowly asphyxiate. States are fumbling to find drugs, concocting different combinations every time. In the case of Mr. Wood's execution, the state used a two-drug combination that had been used only once before, when the state of Ohio took 25 minutes to kill Dennis McGuire.

And these killing experiments are being carried out in secrecy. The hours before Mr. Woods was strapped to the gurney were a frenzied attempt to figure out where the drugs came from before they could be shot into his vein. We still don't know.

The greater problem underlying the horrific executions we have recently seen is not lethal injection or a matter of simply getting the drugs right. The execution of the innocent, the shameful role of race, mentally ill defendants, poor defense lawyering, and prosecutors who hide the truth – these are the problems that make the death penalty completely inappropriate in the modern world. Yet we continue to slowly pick off killing methods that are simply too barbaric to condone, but the truth is that there is no way for states – for our government – to kill someone that is in line with the type of country we want to be.

Today, my heart is with Jeanne Brown and all of those who loved Debra Dietz. My thoughts are with the executioners who will have to live with the horrific botch they carried out yesterday. This entire story is a tragic one, and it should push us to admit that the path to justice simply cannot include more gruesome violence.

It's time for a nationwide moratorium on the death penalty.

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Many Deported as "Recent Border Crossers" Are Neither Recent Nor Anywhere Near the Border, Nor Crossing It

July 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Chris Rickerd, ACLU Washington Legislative Office

This piece originally ran on MSNBC.com.

In an attempt to convince the public that its enforcement of immigration laws is fair and compassionate, the Department of Homeland Security emphasizes its supposedly careful targeting of "recent border crossers." This spin on "border removals" conjures up individuals apprehended in the act of crossing an actual border or shortly thereafter.

But those deported as recent border crossers, by DHS's own admission, don't have to be either recent crossers or near a border. So what gives?

Last June, the head of ICE's removal operations explained to Congress that so-called border removals occur whenever ICE deports an individual within three years of entry – regardless of whether the initial entry was authorized – or whenever an individual is apprehended by Customs and Border Protection. That means anyone apprehended by CBP counts as a border removal – regardless of how long they've lived in the United States. Because CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many "border removals" are never fully assessed to determine whether they have a legal right to stay.

Don't be fooled by the word "border" in CBP's name. The agency operates in a vast zone stretching 100 miles from any land or sea border. This includes entire states like Florida and Maine as well as almost all of the country's top metropolitan areas. CBP's unnecessary, and massive, militarization of the border region has produced rampant abuses ranging from racial profiling to excessive force. CBP uses interior checkpoints and roving patrols located far from the border to apprehend individuals who are not recent border crossers by any stretch of the imagination. Data from 2011, the most recent publicly available, show that a quarter of CBP apprehensions took place more than 20 miles from a border.

That matters to families like Alfredo's. In February, Alfredo was referred to the Border Patrol after Ohio police stopped a car he was riding in. There's one obvious problem with this: Ohio's only border is in the middle of Lake Erie. Alfredo's case, recently brought to light by America's Voice, would count as a border removal. He's lived in the U.S. for 24 years, since he was 16, but he was deported 14 years ago. His U.S. citizen spouse at the time – nine months pregnant with their first child – urged him to return. Since then, Alfredo has taken care of his family, with no arrests or other problems.

Is this the profile of a recent border crosser?

DHS claims that its border removals do not target recent entrants with deep family ties to the United States. A recently published report from the ACLU of New Mexico, "Torn Apart: How U.S. Immigration Policy Fragments New Mexican Families," shows how untrue that is.

Here's one example: After 8 years living in New Mexico, 16-year-old Sergio was picked up by Border Patrol on his way to harvest lettuce, 70 miles from the border. That morning his widowed mom, Esperanza, sent him out the door with a lunch. The next time she spoke with Sergio, he was more than a thousand miles away in Central Mexico, a country he knows little about. Sergio's deportation hit his two younger brothers hard, especially six-year-old Israel. When he sees one of Sergio's belongings around the house, he picks it up and asks Esperanza when she'll bring Sergio back.

Stories like Sergio's show that deporting people without considering their individual circumstances is callous and inhumane. It is damagingly inaccurate for DHS to assert that everyone caught within 100 miles of a border lacks ties to the United States. Indeed, the Migration Policy Institute recently reported that "a high proportion of … border crossers are likely to be long-time non-citizens who are returning to the United States … because they have homes and families here."

DHS must stop misleading the press and public about recent border crossers and border removals. A person's unique situation and ties to the United States should matter more than which agency apprehended her and where it occurred. The government should always take into consideration how a person's deportation will affect their family members and the communities they contribute to daily. It benefits no one to deport productive members of the community.

DHS is currently conducting a review of its enforcement practices. The stated goal was to make the process more humane. President Obama has unfortunately delayed any action on this review until the end of the summer. This delay gives him more time to consider the cruelty and absurdity of our current approach to the tens of thousands of "recent border crossers" we deport every year despite longstanding ties to the United States.

DHS's obfuscation about recent border crossers is intended to conceal its harsh and indiscriminate deportation record, but Alfredo's and Sergio's ordeals tell the true story: many recent border crossers are nothing of the sort.

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Sorry Mr. Mayor, But Atheists Have Rights, Too

July 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Carrie Ellen Sager, PFRB Legal Fellow, ACLU

They say you can't fight city hall, but sometimes there's no other choice.

The residents of Warren, Michigan, visit their city hall on a regular basis to pay taxes, to vote, and to visit the library branch and the farmers market that are located there. Since 2009, they have also been able to visit a "Prayer Station" in the building's large atrium.

Set up by a local church under a city policy that lets civic organizations and residents reserve space, the table is staffed by volunteers, who pass out religious literature and invite passersby to pray with them or come to their church.

Douglas Marshall, an atheist, often passed the Prayer Station and decided to set up a similar "Reason Station" to offer information on atheism and free thought. But when he submitted an application, the mayor refused to accept it. He told Marshall that he would allow any religious group to use the atrium, but not Marshall, who he claimed was "anti-religion" and trying "to deprive all organized religions of their constitutional freedoms."

But when a city opens up its facilities to the community, it can't pick and choose who gets to use them, and it certainly can't favor religious groups over nonreligious ones. That's why the ACLU and the ACLU of Michigan – along with Americans United for Separation of Church and State and the Freedom From Religion Foundation – filed a lawsuit today on behalf of Marshall.

Let's be clear: No one's trying to get rid of the Prayer Station. But if the city gives a forum to one speaker, it can't silence another speaker just because it dislikes the message.

So to recap…

When Douglas Marshall walked into city hall and saw there was a Prayer Station there, he was like

Cat jumping around lizards

But when he asked the mayor if he could set up a Reason Station, the mayor was like

Donald Glover screaming 'No'

So now the ACLU is like

Nathan Fillion shaking his head

But to be clear, our lawsuit aims to protect the First Amendment rights of all Warren residents, regardless of their religious or philosophical beliefs or non-beliefs.

Pretty sure there's room for both a prayer station and a reason station, guys.

'Girl with Feelings' from 'Mean Girls'

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Why Are These Indian Children Being Torn Away From Their Homes?

July 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Stephen Pevar, Senior Staff Attorney, ACLU

Imagine entering family court and knowing that what's at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he's removing your child from your custody, from your home. When you ask him why, the judge's replies, "I honestly can't tell you." The judge then signs an order giving custody of your son to Social Services.

You might think that such a court proceeding could never happen in the United States – but you'd be wrong.

It happened not long ago to the father of an American Indian child in South Dakota. What's more, many similar hearings in which Indian children are removed from their homes for no reasons given to the parents occur at least 100 times a year in Rapid City, South Dakota, alone.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.

The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state's second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.

We recently examined 120 transcripts of initial custody hearings – known as "48-hour" hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.

And what were the parents in these hearings "guilty" of? Here is a snapshot of some of the cases discussed in the transcripts:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody.

Our lawsuit seeks to stop state judges and social workers from continuing to remove Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded 36 years ago in ICWA These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state's witnesses.

Based on the 120 transcripts, we recently filed motions asking the federal court to rule that South Dakota officials engage in a pattern and practice of denying Indian families and Indian tribes their basic rights to fairness under ICWA and the Constitution. And next month, the UN Committee on the Elimination of Racial Discrimination will consider a report submitted by the ACLU on U.S. failure to meet its international treaty obligations to end pervasive and institutionalized discrimination, including the lack of due process in American Indian child custody proceedings in South Dakota.

Ultimately, we hope to restore justice to a group of people who our legal system has repeatedly failed.

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VICTORY! A Historic Day for LGBT Equality

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Ian S. Thompson, ACLU Washington Legislative Office

“Many of you have worked for a long time to see this day coming. You organized, you spoke up, you signed petitions, you sent letters -- I know because I got a lot of them.”  

If you’ve ever questioned whether it matters to add your voice to debates about the important civil liberties issues of the day, President Obama’s words from earlier today provide a clear answer. Laura Murphy, director of the ACLU’s Washington Legislative Office, and I were two of the guests on hand this morning to witness President Obama’s signing of an historic executive order to protect LGBT people from workplace discrimination.

The ACLU and our hundreds of thousands of members and activists across the country helped to make this day possible. Together with our partners at All Out, 81,693 people signed a petition urging to President Obama to sign this executive order without an exemption for religiously affiliated contractors.

Had such an exemption been included in the executive order, it would have enabled taxpayer-funded employment discrimination against LGBT people. Thankfully, President Obama – at your urging – stood strong on the side of basic fairness and equal treatment for LGBT people by rejecting calls for such an exemption.

It goes without saying that we still have much work to do to achieve the goal of full civil rights protections for LGBT people. It’s important, however, to take time to celebrate the significant landmarks along the way. Today was such a day. Thank you for helping to make it possible.

Executive Order
The signed executive order.

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The FBI’s Counterterrorism Sting Operations Are Counterproductive

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Naureen Shah, ACLU Legislative Counsel

This piece originally ran on Al Jazeera America.

Adel Daoud is no Ferris Bueller.

A Chicago suburban teen, he couldn’t drive himself to the Jewel Osco grocery store down the street without getting lost, let alone pull a Bueller and hoodwink his parents into letting him have the day off school. He is a D student and forgetful in the extreme. “He’s not a person with a complete mind,” his mother told me.

Yet the FBI began targeting Daoud as a terrorist mastermind shortly after his 18th birthday. At the time the FBI began its sting operation, Daoud wasn’t part of a terrorist cell, nor was any group recruiting him. He was, though, on the Internet, looking for answers about Islam and jihad. At home and at his local mosque, the Muslim teen was told that jihad was nonviolent: It meant supporting your family by being a good son. FBI undercover employees, finding Daoud online, did not affirm that message. Instead, they worked with Daoud, ultimately driving him to downtown Chicago to detonate a weapon of mass destruction outside a bar.

Chicago’s Muslim communities were stunned by the Daoud’s arrest in September 2012. For many, the first question was why. Why target as a terrorist-in-waiting a teen who was plainly incapable of planning and conducting a terrorist attack? The second question was one of fear: Will my child be the FBI’s next target?

To finish reading the story, please click here.

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"The FBI’s Terror Machine, Tonight on HBO"

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Naureen Shah, ACLU Legislative Counsel

More suspense thriller than eat-your-broccoli documentary, The Newburgh Sting follows an FBI informant’s recruitment of four African-American men in an elaborate sting that made headlines in 2009 as a terrorist plot.

mytubethumb See video
Privacy statement. This embed will serve content from youtube.com.

After trolling a Newburgh, New York, mosque for months, the FBI informant met James Cromitie, a man quick to engage in hateful rhetoric. The informant encouraged Cromitie to turn his talk into action, even offering him $250,000, but Cromitie showed hesitation for months. It was only after he lost his job at Walmart that Cromitie came back to the informant, who designed the plot and directed Cromitie to recruit three other men. As a Second Circuit judge put it: “The government came up with a crime, provided the means, and removed all relevant obstacles.” Cromitie and the other men are serving 25 years in prison.

As the ACLU has reported, and a new Human Rights Watch report shows, the case isn’t isolated. The FBI has repeatedly used such aggressive tactics, providing gullible or vulnerable subjects financial support and other incentives for fake plots they may never have initiated on their own.

I sat down with David Heilbroner, director of the film, to get his perspective.

Q: What drew you to this case?

I was drawn to how egregiously wrong stings have gone in this area of anti-terror operations. The FBI was able to entice four destitute African Americans with no particular prospects in life, with $250,000, to do some bad deeds. The FBI is trying to sell this as a terrorist case, when really all you’ve got is proof that you can wave money at people who are desperate and poor and get them to “commit crimes.”

Q: What was the reaction of the African-American community in Newburgh, New York?

The immediate reaction, when we tried to talk to people, was fear. Nobody wanted to get involved. When you break through the fear barrier, what you find is extreme cynicism and disillusionment. It confirms that the government, instead of coming in with a jobs program and better schooling and better opportunities, sends in an informant to pick off low hanging fruit.

Q: In putting the film together, you read through hundreds of government documents. What did you make of them?

I think almost everybody working in the FBI and prosecutor’s office is motivated by very good ideals and goals. But it’s hard for me to look at this case and not think there isn’t some darker, cynical mentality at play. I interviewed [former FBI Assistant Director] Tom Fuentes for the film. He essentially said that we can’t go to Congress and say we’re winning the war on terror because they’ll cut our budget in half. And he said, “it’s the opposite of Jesse Jackson’s ‘keep hope alive’ -- it’s ‘keep fear alive.’”

They are creating these “terrorist” situations and then saying, “Look at all these busts we’re making.” So the implication is that there must be terrorists out there more than ever. It makes people scared. And it makes John Q. Public think that Muslims and terrorism go hand in hand because he sees these two concepts linked repeatedly in the press.

Q: How do you think the government will react to your film?

I think the FBI’s going to continue doing what they’re doing until Congress steps in and takes a hard look. The way the FBI has been criticized up until now is basically on civil rights complaints, entrapment, blatant Islamophobia. All of which are true. But what dawned on me as I made this film is a more elemental crime that the FBI is committing: fraud. The FBI took tax dollars, created a fake case, as a PR move for themselves. The sole purpose of it was to allow the FBI to inflate its sense of importance to both Congress and the American people.

The Newburgh Sting premieres tonight at 9pm Eastern on HBO.

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The NSA’s Other Privacy Loophole

July 18th, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Earlier today, a former State Department civil servant named John Tye published an important op-ed in the Washington Post, explaining that the NSA has created a giant loophole in Americans' right to privacy. While we now know a good deal about the NSA's spying on American soil, Tye explains, the NSA's powers to conduct surveillance on foreign soil should trouble us even more.

Surveillance on foreign soil takes place under Executive Order 12,333, an authority that contains few meaningful protections for the privacy of Americans. For example, if the NSA is spying abroad on foreigners and happens to pick up an American's international call, the NSA can keep listening without a warrant. It can also keep a recording of that call for a long time – even indefinitely, if any of a number of broad exceptions applies.

What's more, the meager protections for Americans in the executive order are not subject to meaningful oversight. Not even the Foreign Intelligence Surveillance Court approves the government's activities under the order, and earlier this year, Sen. Dianne Feinstein (D-Calif.) – the chair of the Senate Intelligence Committee – acknowledged that Congress has not been able to "sufficiently" oversee those activities.

We have long been concerned about the use of Executive Order 12,333 to circumvent traditional protections for Americans' right to privacy. Last year, just two weeks before the Snowden disclosures, we filed a Freedom of Information Act request seeking to learn more about the government's use of the executive order. In the lawsuit we filed to enforce the request, we explained "that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333," inevitably "sweep[ing] up the communications of U.S. persons."

Tye's op-ed, unfortunately, only confirms our fears. Here is how he explains it:

A legal regime in which U.S. citizens' data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders—or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of "mirror" servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

In other words, Executive Order 12,333 is a loophole in Americans' right to privacy: so long as the NSA is targeting foreigners abroad, it can sweep up Americans' communications, too. We already know that the NSA has created and is exploiting a similar loophole under the FISA Amendments Act (which you can read about here). But the executive-order loophole is even more troubling, Tye explains, because it is subject to even less oversight than the FAA.

So, is the NSA exploiting the loophole created by Executive Order 12,333? On this question, Tye's Post op-ed is highly suggestive. He raises the possibility that the NSA might have revived its bulk internet-metadata program under the executive order:

Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because "we thought we could better protect civil liberties and privacy by doing away with it." Note, however, that Alexander never said that the NSA stopped collecting such data—merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans should dig deeper.

Tye also implies that the NSA could use the executive order even more broadly, making surveillance authorities like Section 215 of the Patriot Act – which the government relies upon for its bulk phone-records program – pale in comparison:

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.

Perhaps the most important lesson we should draw from Tye's op-ed is that we have yet to get a full and clear explanation from the NSA of its various surveillance authorities, particularly as they impact U.S. citizens and residents. Instead, we have received half-answers and artfully crafted denials. At a time when Congress is attempting to reform the NSA, it's time to demand more. Again, in Tye's words:

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

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Making Flying While Brown Safe Again

July 18th, 2014 No Comments   Posted in ACLU Nationwide
By Rachel Goodman, Staff Attorney, ACLU Racial Justice Program

When Shoshana Hebshi boarded Frontier Flight 623 on September 11, 2011, she was heading home to Detroit Metro Airport from a visit to her sister in San Francisco. She couldn't have foreseen that being seated next to two other brown-skinned people would end up with her handcuffed, detained, and strip-searched by law enforcement.

Shoshana, born in the United States, is half Saudi Arabian, and the two men who were seated in her row were South Asian. None of them knew each other before they boarded the plane. Still, the airline and the government lumped them all together as suspicious after the two men used the lavatory one after another, for what some passengers believed was an unusually long time.

The airport's police officers have argued that they acted reasonably in detaining Shoshana and that they were justified in strip-searching her, despite the fact that no one ever suggested that she had done anything suspicious at all. This is just one example of how we, as a nation, seem to have lost track of a fundamental truth in the last decade: the Constitution protects all people from discrimination and from unreasonable searches and seizures.

And that's true even for brown people, on airplanes, on the 10th anniversary of 9/11.

But today, a federal trial court decision in Shoshana's case reminds us of that truth. Judge Berg wrote, "The fact that the events occurred on the tenth anniversary of September 11th, on a flight bound for a city previously targeted for a terrorist attack, does not absolve the WCAA Defendants, or any law enforcement officers, of their responsibility to conduct their police work in compliance with the United States Constitution." He further wrote that the court would not "sacrifice these principles of liberty to the cause of hyper-vigilance."

Despite this court decision and others like it, "flying while brown" has all too often been viewed as inherently suspicious in recent years.

Remember the Iraqi-born peace activist Raed Jarrar, who was prevented from boarding his flight while wearing a T-shirt with Arabic script on it?

Or the group of nine Muslim Americans removed from their flight because they discussed safety on the plane, of all things?

Or all those innocent folks prevented from flying, without any meaningful after-the-fact opportunity to clear their names, because of their presence on the government's secretive No Fly List?

Too many law enforcement officers and airline employees seem to think that discriminating against Muslims, South Asians, and Arabs on planes is not quite as bad as other forms of racial profiling. The Department of Justice (DOJ) opened the door to this bias-based thinking when it issued a 2003 policy guidance on racial profiling that prohibits the use of race "to any degree" in law enforcement investigation, except during national security and border integrity investigations.

While DOJ is in the process of revising that guidance, the proposed revisions would leave untouched those gaping exceptions to the racial profiling bar and would not prohibit profiling based on religion or national origin. Those are loopholes that law enforcement can drive a truck through. And just ask Shoshana – that kind of government profiling is no less traumatic and hurtful than any other form of discrimination.

Let's be clear: What happened to Shoshana Hebshi was illegal and unconstitutional, not to mention shameful. Today's court decision reminds us that none of us – brown, black, or white – should have to fear being arrested and strip-searched based on bias and stereotypes.

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Hobby Lobby and the Dignity of the Refused

July 17th, 2014 No Comments   Posted in ACLU Nationwide
By Louise Melling, Director, Center of Liberty; Deputy Legal Director, ACLU

Right now we are in a storm of contested rights, as businesses and institutions across the country ask for express legal permission to use religion to discriminate based on sexual orientation, sex, and gender identity.

Last month, the Supreme Court heightened the storm by ruling that the Hobby Lobby corporation doesn't have to comply with the law and provide its workers with insurance that covers contraception, effectively enshrining into law that religion can be used to discriminate against women.

The decision leaves open the question whether sincerely held religious belief can be used to discriminate in other ways, such as against LGBT people. For example, can businesses invoke religious beliefs as a justification to refuse to bake a cake or rent a reception hall for a same-sex couple?

As we've debated these religious exemptions, the harm to religious objectors caused by not granting these accommodations has been deeply examined. But the question less often asked – and the one the Supreme Court failed to address – is this, "What harm do we cause by granting exemptions to those who are refused?"

Proponents of religious exemptions have argued that they cause little harm, as long as the person can get the services elsewhere.

In a recently published paper, Marvin Lim and I argue that the harm goes far beyond the services denied – the cake or the flowers to celebrate a relationship, for example. The refusal to provide service comes at the expense of dignity of the person who is turned away and ostracized. Hobby Lobby, for example, tells women seeking to use certain contraception, "You are shameful. We won't help you."

Or as the Senate Commerce Committee said in the context of the Civil Rights Act of 1964, "Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public..."

Put another way, the sit-ins at the Woolworth counter weren't about getting a hot dog and a Coke. And David Mullins and Charlie Craig's complaint against Masterpiece Cakeshop isn't just about a cake.

They are about reclaiming the dignity taken away when someone can legally say, "We don't serve your kind here." Or in Hobby Lobby's case, "You are shameful. We won't help you."

Already, those who wish to advance religious exemptions are returning to the stale argument that these exceptions don't cause harm because those who are discriminated against can simply find a cake, a Coke, or contraception elsewhere.

Don't buy it.

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