^{More About: Arguments for Same-Sex Marriage | The Gay Rights Movement}

Photo: Justin Sullivan / Getty Images.

Yesterday, the California Supreme Court legalized same-sex marriage. In 30 days, the ruling will take effect. There is already a right-wing ballot initiative proposal underway to revise California's state constitution to ban same-sex marriage, but there are three factors working against it:

• Proponents have not yet gathered the necessary signatures.
• Public opinion in California is strongly against a constitutional amendment banning same-sex marriage.
• Even California governor Arnold Schwarzenegger, a Republican, has stated that he supports the court's ruling and opposes the ballot initiative.

So while all Californians of good will need to organize against this ballot initiative if and when it moves forward, the most likely outcome is that same-sex marriage will remain legal in California. The only way the legislature can avoid recognizing same-sex marriage, under the terms of the court ruling, is if it abolishes state control over marriage altogether and reclassifies both heterosexual and same-sex marriage contracts as civil unions. This option, while both novel and sensible (see "Should the Government Legislate Relationships?"), is even more controversial than same-sex marriage.

Simply put: California now recognizes same-sex marriage.

What does this mean for the country as a whole? Well, let's look at the numbers:

• An estimated 43 million Americans, or 14.3% of the U.S. population, now live in states that do not prohibit same-sex couples from getting married. (California, Massachusetts)
• An estimated 27.5 million Americans, or 9% of the U.S. population, now live in states or districts that formally recognize domestic partnerships or civil unions, but not same-sex marriage. (Connecticut, District of Columbia, Hawaii, Maine, New Hampshire, New Jersey, Oregon, Vermont, Washington)
• An estimated 234 million Americans, or 76.7% of the U.S. population, now live in states or territories that do not formally recognize same-sex marriage, domestic partnerships, or civil unions on a statewide or territory-wide level.
• The federal government does not award any marriage benefits to same-sex couples, except for certain pension benefits (see "New Pension Bill Provides Benefits for Same-Sex Couples").

To put it another way: About 1 in 4 Americans live in states whose governments do not openly treat same-sex couples with contempt, and same-sex marriage is now a more successful national movement than civil unions. And New York is very likely to join the same-sex marriage list soon, because same-sex marriage is supported by the governor, majorities in both chambers of the legislature, and 53% of the state population. When it does, two of the nation's three most populous states will practice marriage equality.

I'll have more to say about the reasoning behind the ruling itself over the weekend. For now, my thoughts are with the millions of lesbian and gay couples whose lives will be improved, directly or indirectly, by this ruling. Yesterday, California became a much more civilized state and the United States became a slightly more civilized nation. When America begins its Pride Month celebrations in two weeks, we'll all have a little more to be proud of.

See also:

• Freedom to Marry
• The Power of Pride
• 10 Really Bad Arguments Against Same-Sex Marriage

^{More About: The History of Racial Profiling}

Photo: Justin Sullivan / Getty Images.

Earlier this week, Human Rights Watch and the Sentencing Project both released reports strongly indicating that antidrug law enforcement targets African Americans to an astonishing degree.

The larger and more shocking of the two, Human Rights Watch's Targeting Blacks: Drug Law Enforcement and Race in the United States, reports that (among other things):

• Despite decades of data indicating that between 65% and 70% of drug users are white, African Americans are 10.1 times as likely as whites to face prison time on drug-related charges.
• These prison disparities vary by state, with 10.1:1 representing a national average. In Wisconsin, African Americans are 42.4 times as likely as whites to go to prison on drug charges; in Mississippi, "only" 3 times as likely.
• Arrests of black suspects, even in cases of simple drug possession, also occur at a much higher rate. In Georgia, African Americans who make up 14 percent of drug users represent 58 percent of arrests. When the arrests are narrowed to cocaine possession, the difference is even more stark: African Americans in Georgia make up 22 percent of cocaine users, but 79 percent of arrests.

As the report points out, these disparities aren't necessarily due to police profiling--or at least not exclusively due to police profiling. Geography and policy disparities also play a role:

Drug law enforcement ... has focused on low-income, predominantly minority neighborhoods. This is not a "race neutral" factor. Press attention and community concerns about crack cocaine and political imperatives to be "tough on crime" made those neighborhoods the principal "fronts" in the so-called war on drugs. Practical policing factors have played a role as well: drug transactions in poor minority neighborhoods are more likely to be in public spaces and between strangers, making it easier to undertake arrests, such as via "buy and bust" operations, than it is in the bars, clubs, and private homes where drug dealing by whites is more likely to occur.

Human Rights Watch offers a list of eight suggestions to reduce racial disparities in enforcement. Among these is a greater emphasis on community courts and publicly-funded drug treatment programs, which have the effect of actually discouraging drug use, rather than emphasis on longer prison sentences, which have the effect of breaking community ties and discouraging future employment.

The other report, the Sentencing Project's Disparity by Geography: The War on Drugs in America's Cities, documents an average 3.4:1 per capita ratio of black-white drug arrests in 43 major cities. The report also documents that between 1980 and 2003, the rate of drug arrests for African Americans increased by more than 500% in 11 major cities. The only city where white drug arrests also increased by more than 500% during the same period was Buffalo, New York.

But the most startling thing about this report from my vantage point is not the data on racial disparities itself, which reinforces the conclusions of Targeting Blacks and similar reports, but rather the profoundly arbitrary character of drug law enforcement. Between 1980 and 2003, for example, Tucson experienced an 887% increase in drug arrests--compared to 52% in Phoenix and 13% in San Diego. There is no data suggesting that the drug problem in Tucson is appreciably worse than the drug problem in Phoenix or San Diego (nor is there any data suggesting that the 887% increase in rate of arrest has had a noticeably positive impact on drug use in Tucson), but the three municipalities have elected different local governments with different ideas of how to address the issue of drugs.

Both of these reports testify to the damage that the War on Drugs has done to black urban communities. Convicted felons are often barred from meaningful employment for life, even if the felony in question was drug possession. Prison sentences separate families and communities. Frequent arrests disrupt relationships between police and local communities, often leaving residents feeling more like victims of the criminal justice system than constituents. All of these factors encourage future drug use, which in turn encourages future arrests and future imprisonment.

There have been incremental reforms, both at national and local levels. In Mississippi, for example, the recently-signed SB 2136 eliminated mandatory sentences for some minor drug-related offenses. And the Second Chance Act of 2008 (see "The Prisoner's Dilemma") has created new incentives to help felons transition back into the workforce, a key factor in preventing future recidivism.

But at the root of this problem is a military understanding of the drug problem--a poorly-planned and incompetently managed "War on Drugs" that comes with no definition of victory, no definition of defeat, and nothing else that could be realistically described as an exit strategy. Like the "War on Terror," it is defined as an eternal war against vaguely defined enemies--which means that there must always be, by definition, no end in sight. In order to succeed as political theater, the War on Drugs must continue to fail in practice.

See also:

• 7 Arguments Against Racial Profiling

^{More About: The Sean Bell Shooting | Al Sharpton}

Photo: Mario Tama / Getty Images.

Under ordinary circumstances, the large-scale arrest of protesters is a bad thing--but the Rev. Al Sharpton and the family of Sean Bell, a man killed by three plainclothes NYPD officers the night before his wedding in November 2006, have definitely gotten the attention of the national press and the people of New York. Turnout numbered in the thousands. Civil disobedience arrests numbered in the hundreds. It was a successful nonviolent direct action in the tradition of Gandhi and King.

If this still sounds strange to you, let's look a little bit at the context of all this. Two weeks ago, a judge in a bench (non-jury) trial found the three officers who shot Sean Bell and his two friends not guilty on all charges, including the minor charge of reckless endangerment. The U.S. Department of Justice can file federal civil rights charges against the officers, but may or may not do so. What activists must do, right now, is persuade the Department of Justice to do so.

Since the Department of Justice is part of the executive branch, a political entity, this means that protesters need media coverage--and lots of it. And when planning yesterday's event, New York protesters figured out a way to get that coverage. Instructions can be found on the Sean Bell family web site:

Volunteers for arrest must be over 18 years of age; not have any type of open warrant or owe parking tickets or other fees to the City; submit emergency contact information, bring state or federal issued ID, and provide name, address, contact information and birth date to the organizing team to secure your fast release from jail and follow the instructions of National Action Network Team Contact and Legal Support.

• This is a peaceful protest which will be a violation and NOT A CRIME!

• You may spend anywhere between 4 – 24 hours in jail, depending on the precinct and volunteer turnout. Otherwise please come and support at any of the above six sites and be there by 3pm.

THIS IS A NON-VIOLENT EFFORT. IT IS AN ORGANIZED COLLECTIVE STATEMENT AGAINST AN UNJUST, INHUMANE, AND RACIST JUDGMENT! IT IS A POLITICAL STATEMENT. IT IS NOT A CONFRONTATION WITH THE POLICE.

And it wasn't. The entire protest went off without a hitch. The Bell family is planning a series of additional actions, culminating in a general strike that will, in Rev. Sharpton's words, "shut down the city" for a day. Other actions are also in progress. Governor David Paterson (D-NY) has agreed to meet with Sharpton and the Bell family this afternoon to discuss the case. The NYPD's internal investigation is still ongoing. Whatever happens, we can be sure that the story of the Sean Bell shooting will not quietly end with the acquittal of the officers who killed him.

See also:

• They Thought They Heard Somebody Say "Gun," So They Fired 50 Bullets

^{See also: Justice Antonin Scalia}

Photo: Alex Wong / Getty Images.

Yesterday, the U.S. Supreme Court ruled 6-3 that Indiana's restrictive new voter ID laws are constitutional.

Well, sort of.

It was actually more of a 3-3-3 ruling; justices Stevens, Kennedy, and Roberts held that the Indiana law was constitutional, but expressed concerns about possible voter disenfranchisement and an implicit willingness to reconsider these sorts of laws if they have the net effect of suppressing turnout. Justices Breyer, Ginsburg, and Souter wrote against the Indiana law, arguing that it poses an unacceptable burden on citizen voting rights.

But Justice Scalia went way off in right field, taking justices Alito and Thomas with him, in an opinion that would have upheld practically any restriction on voter participation as long as it is neutrally constructed, regardless of whether it has the net effect of disenfranchising voters.

Justice Scalia grounds his definition of unconstitutional discrimination solely in legislative intent, not the actual effect of a given piece of legislation. End result: Although he says he would oppose poll taxes now, the inescapable logic of Justice Scalia's opinion seems to be that if the Supreme Court happens to believe that a legislature didn't mean to suppress a specific group of voters, it doesn't matter what a given piece of legislation actually does. There is no reason why poll taxes, literacy tests, and other traditional voting restrictions of the Jim Crow era would not meet the Scalia test, provided that they were passed with no discernible whiff of conscious discriminatory intent.

As we head into an era where laws are increasingly passed that would have the net effect of discriminating against Latinos, I don't find it all that comforting that this sort of pre-civil rights era interpretation of voting rights law appears to be held by one-third of the U.S. Supreme Court. Let's hope Justice Scalia and his like-minded colleagues revise or clarify their position in a later opinion.

Read more:

• Crawford v. Marion County (2008): The Indiana Voter ID Ruling

^{See also: The Eighth Amendment}

Photo: Joe Raedle / Getty Images.

Earlier this week, the Supreme Court ruled 7-2 in Baze v. Rees that the three-drug cocktail currently used to administer lethal injections does not run afoul of the Eighth Amendment.

I'll have more to write about the ruling soon, but the central question of the ruling, for me, is the same as the central question of last year's ruling in Gonzales v. Carhart: When the Supreme Court is interpreting scientific data, on which side should it err? Read more...

^{Civil Liberties Platforms: Barack Obama | Hillary Clinton | John McCain}

Photo: Justin Sullivan / Getty Images.

Earlier this week, in my roundup of the remaining major-party 2008 presidential candidates, I characterized the positions of Barack Obama and Hillary Clinton as more or less equal on the issue of medical marijuana. Bruce Mirken of the Marijuana Policy Project rightly questions my assessment:

Personally, I'm not so sure it's a tie:

Asked by Willamette Week in Oregon, Hillary gives an answer with miles of wiggle room:

http://wweek.com/editorial/3422/10767/

What would you do as president about the federal government not recognizing Oregon’s Medical Marijuana Program as legal?

We’ve got to have a clear understanding of the workings of pain relief and the control of pain. And there needs to be greater research and openness to the research that’s already been done. I don’t think it’s a good use of federal law-enforcement resources to be going after people who are supplying marijuana for medicinal purposes.

So you’d stop the U.S. Drug Enforcement Agency’s raids on medical marijuana grows?

What we would do is prioritize what the DEA should be doing, and that would not be a high priority. There’s a lot of other more important work that needs to be done.

Should medical marijuana be covered by insurance?

I don’t have enough information to know anything about that.

---------

In contrast, Barack Obama has been much clearer:

http://www.medicalmarijuanaprocon.org/pop/candidateviews.htm#obama

Barack Obama, U.S. Senator (D-IL), stated in a Mar. 22, 2008 interview with Gary Nelson, Editorial page editor for the Oregon newspaper Mail Tribune:

"When it comes to medical marijuana, I have more of a practical view than anything else. My attitude is that if it's an issue of doctors prescribing medical marijuana as a treatment for glaucoma or as a cancer treatment, I think that should be appropriate because there really is no difference between that and a doctor prescribing morphine or anything else. I think there are legitimate concerns in not wanting to allow people to grow their own or start setting up mom and pop shops because at that point it becomes fairly difficult to regulate.

I'm not familiar with all the details of the initiative that was passed [in Oregon] and what safeguards there were in place, but I think the basic concept that using medical marijuana in the same way, with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate.

I would not punish doctors if it's prescribed in a way that is appropriate. That may require some changes in federal law. I will tell you that...the likelihood of that being real high on my list is not likely. What I'm not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. We've got a lot of things for our law enforcement officers to deal with."

Let's break this down a little bit and see if we can determine what, exactly, the two candidates are saying. Read more...

^{Civil Liberties Platforms: Barack Obama | Hillary Clinton | John McCain}

Photo: Salvatore Laporta / Getty Images.

The 2008 presidential race has more or less winnowed down to three candidates.

I say three instead of two because there's still one way that Hillary Clinton can win: By achieving an overwhelming superdelegate majority that will override Obama's lead among pledged delegates. I believe this strategy, which would involve (among other things) the disenfranchisement of the vast majority of black primary voters, would have disastrous long-term effects on the party. But decisions with disastrous long-term effects have historically played an important role in national politics, so it would not be fair to pretend that Hillary Clinton is no longer a viable candidate. She is, and will remain so unless and until she decides not to be.

Missing from many of these discussions of the 2008 political process and its historic implications is John McCain. In any ordinary year, an outspoken, freethinking disabled war vet running to become the oldest president elected in U.S. history would stand out a little more--but 2008 is not an ordinary year. It's a year full of historic firsts, and each of the three candidates, in their own way, would change the way we look at the presidency.

At the top of this blog entry, I've provided links to summaries of each candidate's civil liberties platform. But what I aim to do here is rank the candidates on specific issues important to civil libertarians, beginning alphabetically with... Read more...

^{See also: The Eighth Amendment}

Photo: Justin Sullivan / Getty Images.

It's easy to go to prison, especially if you're poor, young, careless, and/or just plain unlucky.

That's one of the messages I took away from the final panel discussion at this weekend's ACLU criminal justice conference here in Jackson, Mississippi. The panel, focusing on recidivism, was made up largely of ex-convicts who had successfully turned their lives around, secured long-term employment, and now run successful programs to help new ex-convicts reenter the workforce. Several were ordained ministers. My recollection is that all said that they had been exceptionally fortunate to have support systems and employment prospects in place when they left prison.

In the United States, we have the world's largest prison population and one of the world's most permanent definitions of criminal status. Ex-felons are denied access to college financial aid, job prospects, loans, and other vehicles for social mobility that most of us take for granted. And while we tend to think of felonies in terms of violent crime, it isn't as difficult to become a felon as one might think--numerous drug and property offenses qualify as felonies. There are times when simply being in the wrong place at the wrong time with the wrong people when you're 19 is enough for a felony accessory charge that will still haunt you when you're 50.

Congress has passed new legislation, the Second Chance Act of 2008, that--once it is signed by President Bush tomorrow--may represent the most substantial piece of civil liberties reform enacted by the Democratic Congress to date. It would institute new initiatives to help ex-convicts adjust to life outside of prison, a goal that is both humanitarian and, as a means of reducing the obscenely high 67% three-year recidivism rate, practical.

To leave ex-convicts with no support network may appeal to some policymakers' alleged sense of rugged American individualism, but in real-world terms all it does is violate the rights of ex-convicts, encourage recidivism, and diminish the possibility of rehabilitation. We should remember that our nation's prisons began, under the Walnut Street model, as penitentiaries--institutions that are meant to bring about penitence. It's hard to repent when there's no promise of a better life on the other side, particularly when one has just spent an entire prison term with other, often more hardened, prisoners.

The Second Chance Act is a solid piece of legislation. In this case I have no criticism, no action alert, no cynical spin. Congress did its job by passing this necessary piece of bipartisan legislation, and President Bush will do his by signing it. More work needs to be done vis-a-vis prisoner reentry, primarily on the state and local level, but this piece of federal legislation will help protect the rights of ex-convicts while simultaneously laying down the groundwork for a lower recidivism rate. It's good, sensible policy, and good, sensible policy seldom makes it this far. Let's take a deep breath and enjoy it.

See also:

• Go to Jail! Go Back to Jail! (Robert Longley / About.com: U.S. Government Info)

^{See also: Summary of the Libertarian Party Platform}

Michael Badnarik, a leading voice in the U.S. Libertarian Party. Public domain photo by Seth Ilys; image courtesy of Wikimedia Commons.

During the 2006 Mississippi U.S. Senate election, I had difficulty choosing between the Republican and Democratic candidates. As I always try to do, I gave the third party candidate--Harold M. Taylor of the Mississippi Libertarian Party--a look. What I discovered was that he was to the right of both candidates on immigration, and at least as far right as either of them were on abortion and lesbian and gay rights. His libertarianism, as it was conveyed to me, was defined mainly by his commitment to state's rights and his vision of a small government. Very much a Ron Paul libertarian.

Ron Paul himself ran for the Libertarian Party's presidential nomination in 1988, and got it. His socially conservative positions on issues like abortion and immigration were not shared by his chief opponent, Russell Means, but they were no obstacle to his candidacy. It has generally been understood that the Libertarian Party's base of support draws to a great extent on Republican demographics--almost exclusively white men concerned primarily about low taxes, state autonomy, and border security. Goldwater Republicans, in other words. Read more...

^{See also: A History of Prostitution}

Photo: Chung Sung-Jun / Getty Images.

Last week's resignation of Governor Eliot Spitzer (D-NY), following revelations that he was a regular client of one of New York's most expensive prostitution rings, has resurrected the debate over legalizing prostitution.

I have no sympathy for Eliot Spitzer, and whether he faces charges or not is of no particular concern to me. As a former attorney general who had prosecuted prostitution rings in the past, he knew what the law said and he knew what the consequences of breaking the law could be--the legal consequences, the political consequences, and the consequences to his family and his supporters. He decided to take that risk, either because the experience was worth it for him or because he believed he would never get caught. Neither possibility speaks well of him.

Alan Dershowitz, who can always be counted on to say something provocative, spoke out in defense of Spitzer:

... But I feel that this is a America-only story that we have to put in perspective. You know, big deal, married man goes to prostitute! In Europe, this wouldn't even make the back pages of the newspaper. It's a uniquely American story. We’re a uniquely, you know, pandering society and hypocritical society, when it comes to sex.

I would challenge Dershowitz to name one major current European leader who is known by the mainstream press to be a regular prostitution client. I don't know of any. Public disclosure of extramarital affairs is a little more common among European leaders, certainly--this was an argument made during the Bill Clinton sex scandals--but that has nothing to do with prostitution, except to the extent that Spitzer hired prostitutes while married.

So let's drop all this foolishness about poor little Eliot Spitzer. He resigned as governor, and good riddance. The debate over legalizing prostitution should not be about protecting him. It should be about protecting the real victims of prostitution. Read more...