Civil Liberties in 2008

Barack Obama will be the 44th President of the United States, and that was without question the most significant civil liberties story of the year. If John McCain had been elected, he would have had the opportunity to establish a conservative majority on the Supreme Court, potentially for decades to come--endangering almost every major civil liberties ruling of the past 50 years. Obama's election means that the Supreme Court is safe for now. It's also likely to mean substantial changes in executive policy. But it doesn't mean that we don't need to watch the executive branch carefully to ensure that the power of Congress to hold it in check is not further eroded.

The Supreme Court's 5-4 ruling in District of Columbia v. Heller (2008) established a coherent federal judicial philosophy on the Second Amendment for the first time in U.S. history, giving attention and power to an overlooked part of the Bill of Rights. The law under dispute, the District of Columbia's ban on handguns, was struck down as unconstitutional--the first time the Supreme Court had ever struck down any law on Second Amendment grounds.

The increased size of the new Democratic majority in Congress--including a nearly filibuster-proof majority in the Senate--means bad news for Second Amendment policy, but good news on almost every other civil liberties issue. President Obama and a Democratic Congress will be just what the doctor ordered to compensate for the Bush administration's excesses and introduce new, essential legislation to protect the civil liberties of all Americans.

But the elections weren't all good news, even on liberal civil liberties issues. Arizona, Arkansas, California, and Florida all passed anti-gay voter referendums that restricted the rights of same-sex couples. The passage of California's Proposition 8 banning same-sex marriage, in particular, has spurred nationwide protests.

The Supreme Court ended a moratorium on capital punishment with its 5-4 ruling in Baze v. Rees (2008), holding that lethal injection does not constitute cruel and unusual punishment. Since that time, states have resumed their execution schedule and begun sentencing new prisoners to death. And so it goes.

In October, the Connecticut Supreme Court legalized same-sex marriage throughout the state and joined California and Massachusetts to become the third state to allow equal marriage rights for same-sex couples.

Word came early in the year that the Bush administration was considering Department of Health guidelines that would force hospitals, clinics, and other institutions receiving federal funds to allow any employee, from janitors and receptionists to physicians, to obstruct patients' access to abortion procedures without risk of being fired. The definition of abortion was initially so broad that it would have included most forms of pharmaceutical birth control, as well as the rhythm method and the Atkins Diet.

The NAACP needed a shot in the arm, and it got one with the selection of a young activist named Ben Jealous as its new president. Longtime NAACP chairman Julian Bond initially offered to step down to make a complete break with the past, but overwhelming support from the NAACP membership convinced him to change his mind and serve another term. With Jealous as president and Bond as board chairman, the NAACP arguably has the strongest leadership it has ever had. And right now, that's exactly what it needs.

In November, a Florida court struck down the state's longstanding ban on adoption by same-sex couples as unconstitutional and discriminatory. The ban, which musician-turned-professional-homophobe Anita Bryant championed in the 1970s, was the only one of its kind in the country--specifically targeting lesbians and gay men (unlike Arkansas' ban, which applies to all unmarried couples).

In August, Immigration and Customs Enforcement (ICE) raided the Howard Industries plant in Laurel, Mississippi and detained 595 allegedly undocumented immigrants--the largest immigration raid in U.S. history. As has been typical of these raids in the past, none of the corporate officials who hired undocumented immigrants were arrested or detained.