It’s been a year since the Board of the ACLU of Virginia offered me the privilege of leading this wonderful organization.  Kent Willis who preceded me in this job gave me some wonderful and welcome advice when I was considering the offer. He said I would be fortunate to be the leader of an organization in wonderful financial shape due to prudent and forward looking management by its board. He told me that I was being offered the chance to lead an organization with a talented staff passionate about the mission and familiar with hard work and service above and beyond the call.  And, he emphasized that I would be joining an organization with committed supporters ready to continue to provide a strong foundation for our work.  In short, I was being given the gift of building on success. He was right.

The work the team at the ACLU of Virginia has been able to accomplish this past year has been significant in its impact and remarkable for its breadth.

We worked with non-traditional partners (the Tea Party Patriots Federation, the Farm Bureau, and the Agribusiness Council) to persuade the Virginia legislature to pass the first statewide restriction on the civilian use of drones by law enforcement – an issue at the intersection of privacy and technology.

We won yet another case challenging government-led denominational prayer at public meetings continuing our fight against the establishment of state-endorsed religion.

We convinced a Fairfax judge that the Virginia law restricting the right of religions without ministers to solemnize marriages for members of their congregations without posting a $500 bond was unconstitutional, protecting the free exercise of religion.

We set the stage for a challenge to the Charlottesville panhandling ordinance helping to protect our right to free speech.

We established that a transgender woman in prison has the right to be evaluated to determine what medical treatment she may need thereby helping to secure equal rights for transgender inmates.

We achieved real reform of jail and prison rules regarding the use of restraints on pregnant women– rules that subjected women to cruel and unusual punishment and endangered their health.

We sought and received assurances from the state Department of Motor Vehicles that immigrant students granted deferred action can qualify for Virginia drivers’ licenses, securing their right as people in the United States to the equal protection of the laws.

We applauded the support offered by the Governor and the Attorney General for the restoration of voting rights for persons once convicted of felonies, although we were disappointed their support was not enough to convince the legislature to act and we continue to ask the Governor to take executive action available to him.

The team at the ACLU of Virginia also worked this year to grow our organizational capacity to do even more great work.  We moved to new, higher quality office space in downtown Richmond built out to our specifications at no cost to us and for which we are paying 13% less per square foot than we were paying at our former location.  We enhanced our communications technology, purchased legal case management software, and upgraded our computing capacity. The staff made decisions about our health insurance coverage that held premium increases to 6% instead of the 25% originally projected.  And, we reorganized and reconfigured our staffing to allow us to hire the first full-time paralegal for the office, a communications and development assistant, and a director of public policy and communications without increasing the amount budgeted for staff over the amount budgeted in the prior fiscal year.

None of what we accomplished this year would have been possible without the successful work of the Board and staff that came before and provided the foundation and imperative for continued success.  At the same time, however, the year also brought lessons about how much more work we have to do, and how much the ACLU is needed to assure we are all free.

None of us can truly be free as long as there is a risk that any innocent person might die on death row.

None of us can truly be free as long as hundreds of thousands of fellow Virginians are denied the right to vote because of convictions for long past behavior.

None of us can truly be free as long as aspiring citizens have no path to full civic participation.

None of us will truly be free so long as the government can freely access our cell phone data and email without a warrant.

None of us can truly be free as long as any Virginian goes to work or school afraid that they will be disciplined, bullied, or fired just because of their sexual orientation or gender identity, or until all are free to marry the person they love.

A sad lesson from this year is that, despite changing public attitudes, the recalcitrance of the Virginia legislature to any proposal to grant equality or freedom to LGBT people means that freedom to marry will be won for LGBT Virginians in the courts if at all. The ACLU of Virginia was founded by those who helped end the ban on interracial marriage by bringing the case of Loving v. Virginia before the United States Supreme Court. A fitting celebration for the ACLU of Virginia’s 50th anniversary in 2019 would be the successful outcome of a case brought to establish the freedom to marry for all couples regardless of sexual orientation.

Another difficult lesson from this year is that it is time to change the conversation about abortion so that everyone who values their privacy, their autonomy, and their basic liberty will understand that limits on women’s freedom to access basic reproductive health care represent a challenge to everyone’s freedom.   New ultrasound laws threaten the freedom of women to get health care without having to compromise their privacy or invite the government into their doctors’ offices.  Regulations that are unnecessary to protect the health and safety of women patients threaten the freedom of health care providers to continue to offer their services and the freedom of women to have access to such care.  We cannot allow those who seek to restrict women’s freedom to use religious liberty as a cloak to hide their true intent.

Returning to the positive, the ACLU of Virginia continues to be blessed with remarkably committed and talented staff and volunteers and thousands of dedicated supporters who have invested and continue to invest their time and money in our work.  Supporters like Pat Arnold and Nat Wilson have made lasting gifts that seeded our women’s rights work and enabled this year’s technology investments. The new Jules S. Cohen Fund for Religious Liberty established this year will help fund our work to secure religious liberty for all and fend off the cynical effort to use religious liberty to justify discrimination.  Last year’s Kent Willis Challenge by an anonymous donor helped ensure the success of our annual Liberty Campaign.  These blessings fuel our optimism and nurture all of us for the work ahead.

The ACLU of Virginia is growing and we’re improving our efficiency and strategy as we grow.  Our recent move to a larger space will increase staff and volunteer/intern capacity, and we’ve enhanced our technology and improved our workflow to foster teamwork and an integrated advocacy approach. 

The first of our new team members is Tamara Mason, a Richmond native, coming to us by way of Raleigh, NC.  She joins us as our Communications and Development Assistant.  Tamara will be helping us expand  our social media presence, communicate better what we do statewide, build our affiliate’s capacity and resources, and develop the next generation of civil libertarians who will ensure the protection and advancement of our most fundamental rights in Virginia. Tamara joined our staff at the beginning of May. Welcome, Tamara!  We’re pleased to have her with us.

More About Tamara

I’m excited to join the ACLU of Virginia team.   Creating avenues of understanding and respect between ALL people has become a passion of mine.  This kind of work never gets tiring because it is work that feeds and enriches my soul, which is important to me.  In turn, working with the ACLU will allow me the opportunity to create meaningful and lasting relationships with others who are committed to bringing about positive change in our community, helping to secure our civil liberties and civil rights for generations to come.

My career background is in social justice, having spent over 10 years with the National Conference for Community and Justice (NCCJ) of the Piedmont Triad in Greensboro, NC.  I wore many hats while working there from website manager and accidental techie to curriculum designer and facilitator of human relations discussions and workshops.  I enjoyed all of my work because I knew in the long run I was helping to make a difference in people’s lives.  I’m thrilled to bring that passion with me back home to Virginia with the ACLU.

Prior to my work at NCCJ, I attended Guilford College, a Quaker institution guided by seven core values: Community, Diversity, Equality, Excellence, Integrity, Justice and Stewardship, which attracted me from the time I first learned about the school.  Through my experiences at Guilford College, I found my passion for social justice and discovered my inner activist.

I am also happy to be back in Richmond with my family.  I’ve missed having them only a 20 minute drive away.  Now I can bug them any time I want!  I also love Latin dancing, trying out new foods and restaurants, arts and crafts, my sorority and sisters of Theta Nu Xi Multicutural Sorority, Inc. and learning!

Gov. McDonnell is kicking off a campaign in celebration of Foster Care Month, beginning with a rally on May 17th in Richmond.  He says his goals are to increase the number of adoptions in our state, and raise awareness about the processes and procedures for adoption and becoming a foster parent.  He has committed to, “change 1,000 lives in 2013”. 

The ACLU of Virginia applauds the initiative to make sure all children have the opportunity to grow up in forever homes.  Nonetheless, we remain concerned that there are willing prospective parents in Virginia that continue to be denied the opportunity to adopt or foster children and thousands of children who will continue to be denied loving homes as a result.

Currently, Virginia does not allow two people to adopt the same child unless they are a man and a woman who are married to each other. Single people can adopt or foster legally, but it appears that, despite the Governor’s campaign, the state is actively discouraging legally qualified single unmarried adults (whether gay or straight) from offering a child a forever home. This is particularly true when the prospective parent is in a long-term, stable, monogamous relationship with someone to whom they are not married, but share a residence. 

Add to this that, in 2012, the legislature authorized private adoption and foster care agencies that are funded with tax dollars to screen and reject potential foster or adoptive parents and children in need of such services based on the agency’s religious beliefs and/or moral principles. This allows state-sanctioned and state-funded discrimination against potential LGBT parents, and others based on factors such as age, disability, or religion.

While Virginia’s foster care rate (2.6 children per 1,000) currently is the lowest in the nation, this still means that Virginia has more than 5,000 children in foster care. More disturbingly, once a child is placed in foster care in Virginia, they are less likely than children in other states to gain placement in a forever home.  According to the Virginia Department of Social Services’ own website, Virginia leads the nation in the percentage of children who age out of foster care (32%), and the average time that children spend in foster care before they gain a loving home (18.1 months) is the second longest in the nation.  If Virginia is serious about changing these statistics and finding forever homes for  the more than 1600 children now in foster care who will age out of the system at 18, it’s time to put an end to policies and practices that discourage any qualified parents (single or married, gay or straight, young or old) from offering such loving homes.

This is especially important to the children in the system who are gay, lesbian, bisexual, or transgendered.  Studies suggest that the percentage of LGBT youth in the foster care system is likely to be higher than the percentage of LGBT people in the general population (estimated at 5-10%) because LGBT youth are often the victims of discrimination and abuse by their families of origin.  Many of these young people become part of the foster care system either by choice or agency placement.  Equally as disturbing, many of these youth – as many as an estimated 78% – endure further harassment or abuse after being placed in out-of-home care, resulting in many homeless or transient youth who have chosen to live on the streets rather than suffer harassment, abuse and violence at “home” and an increased presence in the juvenile justice system. 

The ACLU of Virginia calls on Gov. McDonnell to take action to end discrimination against people and families in our state to ensure that not a single person is prevented from adopting or fostering by “lifestyle” determinations that are nothing more than discriminatory practices that deny prospective parents the opportunity to provide a home for a child or a child the opportunity to find a forever family. 

Virginia has finally repealed a Victorian-era law criminalizing cohabitation.  It is time to put an end to similar antiquated policies that interject the government into our homes and private lives in a manner that bears no relationship to the qualification or suitability of a parent or the best interests of the child.

Take action now and join us in asking the Governor to celebrate Foster Care Month by ending discriminatory practices that keep children in need from their forever families.  Every child deserves a safe and loving home.  No child should be left “homeless” due to discrimination. No devoted prospective parent should be turned away because of prejudice.

Some question why the ACLU is engaged in the national conversation about immigration reform, or why the ACLU of Virginia has worked in coalition with other groups against anti-immigrant legislation proposed in the General Assembly. The answer is simple. Immigrant rights are civil rights.

The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every “person” and are not limited to citizens. Thus, the ACLU seeks to protect the civil liberties and civil rights of all persons, regardless of their immigration status.

Sadly, we have witnessed throughout American history the abhorrent consequences of creating an “underclass” of people living without the Constitution’s full protections. Immigrants have long been exploited in employment and have frequently been the targets of abuse.

The broken immigration system continues to contribute to the existence of this underclass of people — many of whom are from communities of color — who are marginalized and subject to abuses by service providers, domestic partners and employers, and who are not afforded the full protections of the Constitution or laws of the United States either in criminal courts or during detention proceedings.

At the state level, anti-immigrant legislation is often inherently discriminatory, subjecting people of color or different language traditions to discriminatory policing or other violations of the Equal Protection clause, including employment discrimination. Such legislative measures are antithetical to our basic notions of fairness and justice. Moreover, they are counterproductive and undermine community policing efforts in which law enforcement officers and departments work to build trust with victims and witnesses. How can immigrants trust and help police in reporting or solving crimes if they fear they will be deported and their families will be torn apart?

At the national level, immigrants are often deprived of due process in the name of national security. In the last year, hundreds of thousands of people were detained administratively without an adequate bond hearing and without access to counsel. Migrant criminalization has fueled our pipeline to mass incarceration. Federal prisons are 40% over capacity, due in large part to indiscriminate prosecution of individuals for crossing the border without authorization, often to rejoin their families.

Finally, the push to create a national ID or employment verification system using biometric identification threatens our right to privacy and increases the risk of data breaches and identity theft and can lead to harassment and denial of access at TSA checkpoints, voting booths or gun permits.

These threats to civil liberties negatively impact all of us as they offend the basic tenets on which our country was founded. Legalization of aspiring citizens will help restore fairness to an immigration system under which 1.5 million people have been deported at a staggering cost in the last four years, leaving hundreds of thousands of U.S. citizen children without parents, and tens of thousands in foster care. Fundamental fairness as guaranteed by the U.S. Constitution requires that we bring all aspiring Americans living in and contributing to the U.S. within the legal embrace and legal protections afforded by U.S. citizenship.

Reports estimate that by 2015, more than 65% of Americans will have smartphones.  And, smartphones are increasingly equipped with features and apps that, while arguably make our lives easier, make it easier for private industry and the government to track us.  It’s possible to track the location of a smartphone instantaneously, and because phone companies keep records, it is possible to get historical location data of where a smartphone has been for months, even years.

Unfortunately, our privacy laws have not kept pace with technology.  Virginia law enforcement officers are increasingly using cell phones to track individuals without first obtaining a search warrant or even having a suspicion of criminal wrongdoing.  Without new state laws requiring law enforcement officers to show probable cause to get a search warrant, the government has unfettered access to the most private details of our lives.  We cannot wait for the courts to rethink traditional constitutional doctrine in light of the rapid evolution of technology.  We believe that the Virginia legislature must take action now to protect our privacy rights.

Smartphones can show where we spend our time and hold some of our most confidential communications–whether at a gay bar, an Alcoholics Anonymous meeting, an abortion clinic or a political protest—it’s all available.  Before the growth and ubiquity of this technology, it was cost prohibitive for law enforcement to surveil any one person with such oversight and in such detail.  Even the U.S. Supreme Court recognized in U.S. v. Jones that tracking technology has the ability to paint such a complete picture of a person’s life that First Amendment freedoms may be chilled. Left unchecked, the government’s ability to obtain and reveal private aspects of a person’s life is susceptible to abuse.

In an effort to curb the overreach of law enforcement practices, this past session Delegate Betsy Carr introduced legislation that would have required law enforcement officers to get a search warrant before the government could  engage in real-time tracking of  an individual’s movements through an electronic device.  Delegate Carr also introduced a companion bill that would have required law enforcement officers to get a warrant before obtaining historical location tracking data from an individual’s electronic device.  Both bills failed in the House Courts of Justice Criminal Law Subcommittee after legislators conceded to the pleas of law enforcement officers saying that they wouldn’t be able to protect public safety if they had to “jump through hoops” by getting a search warrant.

Law enforcement officers are required to show probable cause to get a criminal search warrant in most traditional settings. This requirement should apply with equal force to the investigative use of new technologies.  Because we now live in a technology driven society, we need updated laws that protect public safety and respect constitutional rights in the twenty-first century.  The Fourth Amendment is clearly implicated in smartphone location tracking and to deny the invasiveness of the practice would be absurd.  No one should have to give up their privacy as a condition of using the latest technology.  Virginians should continue to have a reasonable expectation of privacy when they use their smartphones.  It would be prudent for law enforcement agencies to come to the table to work with privacy advocates and legislators to ensure we are both free and safe.

We will be asking legislators to take another look at this issue and will work to pass laws in the 2014 session requiring law enforcement officers to get a warrant before tracking an electronic device in real time or obtaining its historical location tracking data.  Protecting privacy rights has strong public and bipartisan support as seen by the passage of the drone moratorium bill in 2013 and we are optimistic that this issue will resonate similarly with the General Assembly and a broad cross section of Virginians.

For more information what is happening on the issue in Congress:  http://www.aclu.org/blog/technology-and-liberty/congress-must-act-stop-unwarranted-tracking-law-enforcement

Today, April 9, 2013, is Equal Pay Day, which marks how far into 2013 a woman must work on average to earn what an average man earned in calendar year 2012.  And on June 10, we will mark the 50^th anniversary of the Equal Pay Act of 1963. Over the past 50 years, the Equal Pay Act has been weakened by adverse court rulings that have created loopholes, limited remedies and resulted in protection that is far less effective than Congress originally intended.  Half a century has passed and women still earn on average only 77 cents for every dollar earned by men.  Women of color fare even worse – in 2011, African-American women only earned approximately 64 cents, and Latinas only 55 cents, on average for each dollar earned by white men.

In addition to outright wage discrimination, the disparity in average earnings persists in part because women continue to lack full access to traditional male occupations and are steered into lower-paying and less desirable sectors.  Women are also disproportionately represented in lower-paying and lesser-power jobs within sectors. Finally, traditional “women’s work,” including, for example, teaching and nursing, remains undervalued in the market compared to work requiring similar skill, education and training done in historically male dominated jobs.  While not all of these factors can be addressed in legislation, a strong Equal Pay Act can help wring the overt wage discrimination out of the system.

At his State of the Union address in January, President Obama asked Congress “to declare that women should earn a living equal to their efforts and finally pass the Paycheck Fairness Act this year.”  We ask the same of Congress.  The Paycheck Fairness Act would update the Equal Pay Act of 1963, protecting employees in all workplaces.  It closes the loopholes and strengthens the weakened remedies that have made the Equal Pay Act less effective in combating wage discrimination by making the following changes:

• Requiring employers to demonstrate that wage differentials between men and women holding the same position and doing the same work stem from factors other than sex.
• Prohibiting retaliation against workers who inquire about their employers’ wage practices or disclose their own wages.
• Permitting reasonable comparisons between employees within clearly defined geographical areas to determine fair wages.
• Strengthening penalties for equal pay violations.  The bill’s measured approach levels the playing field by ensuring that women can obtain the same remedies as persons subject to discrimination on the basis of race or national origin.
• Authorizing additional training for staff at the U.S. Equal Employment Opportunity Commission to better identify and handle wage disputes.

In addition to urging Congress to enact reforms, the ACLU is calling on President Obama to issue an executive order prohibiting retaliation against federal contract employees for discussing their wages. While federal legislation is still needed to protect employees in all workplaces, this is an important first step that will reach the approximately 26 million workers employed by federal contractors – which is over 20 percent of the civilian workforce.

Retaliation for wage disclosure is a major obstacle preventing women from achieving equal pay for equal work. Women often can’t even find out if they’re being paid less than their male co-workers because many employers have rules that punish employees for voluntarily sharing wage information with their colleagues. Allowing workers to discuss their salaries, without fear of losing their jobs, will help women to take steps to ensure they are being treated equally. Critics of pay equity initiatives often say that part of the gap in earnings between women and men exists because women just don’t ask for equal pay.  It is up to employers to create a work environment that supports women so they can and do ask.

Last Congress, the Paycheck Fairness Act fell just short in the Senate. Neither of Virginia’s Senators co-sponsored this important legislation and only 3 members of the Virginia delegation in the House of Representatives did.  Ask your members of Congress to co-sponsor the Paycheck Fairness Act today.

An executive order and passage of the Paycheck Fairness Act are particularly necessary in today’s difficult economy where approximately 40 percent of women are the primary breadwinners in their households. In this economic climate, we need concrete and immediate action to improve the economic security of working families. Pay equity is critical — to families’ economic security  and to the nation’s economic recovery.  Fifty years is too long to wait for equal pay for equal work.  Now is the time to end wage discrimination once and for all.

Women’s History Month offers an opportunity to reflect on the ACLU’s long history of working for an America where all women and girls have equal access to quality education, employment, housing, and healthcare, irrespective of race, class, income, immigration status or involvement with the criminal justice system.

Women’s History Month also helps draw attention to current struggles for women’s equality, such as ensuring economic and educational opportunities for all women, ending violence against women, and addressing the harms to women and girls caught up in the criminal justice system. By recognizing women’s many important gains in social and economic equality in the U.S. over the past century and drawing attention to the women who helped lead the way in fighting for those rights, we see how far we’ve come and the work that still needs to be done.

Even before the start of Women’s History Month in 1981, the ACLU committed itself to securing gender equality and ensuring that all women and girls are able to lead lives of dignity, free from violence and discrimination, including discrimination based on gender stereotypes. Suffragists and other women social reformers and political activists — including Jane Addams, Mary Ware Dennett, Crystal Eastman and Jeannette Rankin — were instrumental in the founding of the organization in 1920.

In the 1920s, the ACLU defended suffragist and birth control pioneer Mary Ware Dennett when the government declared her sex education pamphlet “obscene.” Her offense: the distribution of her pamphlet, “The Sex Side of Life,” a sex education primer for adolescents.  In the 1930s, the ACLU fought for the right of Connecticut schoolteachers on maternity leave to be reinstated in their jobs following the birth of their babies. Throughout the 1940s, the ACLU advocated equal pay for equal work and lobbied against federal and state laws that made it a crime to use or sell contraceptives or birth control information. During this decade, the ACLU also challenged a Massachusetts law that prohibited married women from teaching in public schools. During the 1950s, an era that was decidedly unfriendly to women’s and civil rights, the ACLU successfully challenged a state law that made it a crime for a white woman to bear the child of a black man. In the 1960s, the ACLU intensified its activism on women’s issues, attacking the exclusion of women from juries and petitioning Congress to enact and enforce laws barring discrimination against women. In 1970, the ACLU endorsed the Equal Rights Amendment and declared women’s rights its top priority.

The following year, created by Ruth Bader Ginsburg, the ACLU established its national Women’s Rights Project (WRP) to seek equality for women.  Through litigation, community outreach, advocacy and public education, WRP empowers poor women, women of color and immigrant women who have been subject to gender bias and who face pervasive barriers to equality. WRP works to ensure that women and their families can enjoy the benefits of full equality and participation in every sphere of society.

In WRP’s first case, Reed v. Reed, which challenged the automatic preference for men over women in the context of estate law, the Supreme Court for the first time declared sex-based classifications unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, setting a precedent upon which many significant later cases would rest. Under the direction of Professor Ruth Bader Ginsburg, the ACLU’s women’s rights docket swelled to more than 300 sex discrimination cases in the project’s first decade. Ginsburg explained that she deliberately chose to work with the ACLU because of the interconnection between civil rights and civil liberties, saying: “I wanted to be a part of a general human rights agenda. Civil liberties are an essential part of the overall human rights concern — the equality of all people and the ability to be free.”

Here in Virginia, the ACLU filed a case on behalf of a newspaper editor in Charlottesville, Virginia who had published an advertisement for an abortion referral service in New York (where abortion was legal). The case, Bigelow v. Virginia, concluded with the Supreme Court ruling that states could not ban advertising by abortion clinics. 

The ACLU and its 53 affiliates continue the fight for women’s rights across the nation at the local, state and federal levels. And, thanks to Patricia M. Arnold, the Virginia affiliate has its very own women’s rights project.  In 2007, Arnold, a pioneer woman aviator and longtime supporter of the ACLU of Virginia, left the bulk of her estate to establish the Patricia M. Arnold Memorial Fund. The purpose of the fund, according to Ms. Arnold’s will, is “to combat through all legal means, the pervasive and powerful sexual bias and sexual discrimination against women found to exist in the State of Virginia.”

Patricia M. Arnold (Photo Credit: International Women's Air & Space Museum, Cleveland, Ohio)

Patricia Arnold was a pioneer in the field of women’s aviation. She began flying in 1948. Arnold flew a Piper Comanche 260, which she named “Snoopy”. She served in the United States Navy, then the reserves. She used the G.I. Bill to get her pilot’s license, soloing after 8 hours of instruction. Arnold started the National Women’s Pylon Racing Association in 1966 and placed first in about one-third of the races that she flew. In 1967 she won the Cleveland Air Race.

The first female owner of a helicopter in the United States, Arnold worked as a flight instructor, a corporate pilot, and an airport manager. In 1957, she was the first person in Connecticut to broadcast traffic advisories from an airplane. She was also a charter member of the Central Connecticut Chapter of the National Organization for Women.

Pat Arnold is emblematic of the reason we celebrate Women’s History Month. Her achievements help showcase the gains women have made, and the establishment of the Patricia M. Arnold Women’s Rights Project allows this affiliate to continue the long history of the ACLU’s fight for women’s rights. Women have made great gains in the fight for equality, but there is still a fundamental perception that women and girls are not equal to men and boys. Until that perception changes, gender bias will continue to create huge barriers for many—especially for immigrant women, women with low incomes, victims of domestic violence, and women seeking reproductive health care.

This Tuesday and Wednesday, the Supreme Court will be hearing arguments in two major cases about marriage equality.  The impact on the lives of lesbian and gay Virginians could be huge—or not.

On Tuesday, the Court will hear Hollingsworth v. Perry, a challenge to a prohibition on same-sex marriages.  In May 2008, the Supreme Court of California ruled that, under the California constitution, gay couples must be afforded the same right to marry as heterosexual couples.  Over the next several months, thousands of gay couples got married in California.  But in November 2008, California voters approved Proposition 8, which amended the state constitution to define marriage as a union between a man and a woman.  The Hollingsworth case,  is a constitutional challenge to Proposition 8.

The Prop 8 case, as Hollingsworth is known, gives the Supreme Court an excellent opportunity to rule that civil, government-recognized marriage is a fundamental right, one that must be afforded to both gay and straight couples without discrimination.  Such a landmark decision would require all states, including Virginia, to allow same-sex couples to marry.

Unfortunately, most court-watchers do not expect the Supreme Court to issue such a broad ruling.  If the Court does strike down Proposition 8, it will likely do so in a narrower fashion.  For example, the Court could rule that having once granted gay couples the right to marry, the state could not then take the right away, since the only possible reason for doing so is animosity toward gay people, a discriminatory intent ruled unconstitutional by the Court in a Colorado case some time ago.  (That was the basis on which the Ninth Circuit Court of Appeals struck down Proposition 8.)  If the Court goes that route, it will only affect California.

Alternatively, the Court could hold that it is irrational for California to withhold marriage equality, when it already affords gay couples all of the substantive privileges and obligations of marriage through its laws allowing registration of domestic partnerships.   Again, the only reason not to allow gay couples to marry, when they are treated just like married couples for purposes of taxes, property, child custody, and so forth, is hostility toward gay people, which is constitutionally impermissible.  If the Court so ruled, it would affect the eight states that currently allow gay couples to enter into civil unions  or domestic partnerships that are functionally identical to marriage.  Alas, Virginia is not one of those states.

Of course, the Court could also rule that gay couples have no federally-protected constitutional right to marry whatsoever.  This would leave Virginia exactly where it is now, with a state constitutional and statutory ban on same-sex marriages.  In that case, it will be essential for all supporters of marriage equality to rededicate themselves to using the political process and public education to amend the state constitution and repeal the prohibitive laws.

On Wednesday, the Court will hear arguments in United States v. Edith Windsor, an ACLU case challenging a portion of the federal Defense of Marriage Act (DOMA).  The ACLU represents Edie Windsor, who was in a relationship with her wife, Thea Spyer, for forty-four years. After Thea was diagnosed with multiple sclerosis, Edie cared for her as her condition gradually deteriorated.  In 2007, the couple married in Canada.  Thea passed away in 2009.  She left her entire estate to the great love of her life, her wife Edie.

Usually when one spouse bequeaths property to the other, the property is exempt from federal estate taxes.  Under DOMA, however, the federal government is prohibited from recognizing a  legal same-sex marriage for any purpose.  Since the government cannot recognize Edie and Thea’s marriage, Edie ended up owing over $300,000 in estate taxes.

The ACLU lawsuit argues that the federal government must treat a legal, same-sex marriage exactly the same as any other legal marriage.  If the Supreme Court rules in our favor, Edie will not have to pay taxes on Thea’s estate.  And any legally married same-sex  couple, whether married in California (while marriage was legal), Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington or the District of Columbia or a jurisdiction yet to implement marriage equality will have their marriage count for all federal purposes, including taxation, federal employee health insurance, and Social Security or GI survivor benefits.

Thus, in Virginia, the DOMA ruling will allow federal benefits to flow to couples who got married in one of the jurisdictions that allow same-sex marriages.  Those marriages will be recognized by the federal government.  Unfortunately, such a ruling will not require Virginia to recognize any same-sex marriage, so legally married same-sex couples will continue to be denied all of the benefits of marriage in Virginia and to have their marriages considered void. Again, it will be up to all of us to continue to press for marriage equality in Virginia.

Last month, Attorney General Ken Cuccinelli issued an opinion on the use of Automatic License Plate Readers (ALPR) that hit the nail on the head, striking the right balance between law enforcement needs and personal privacy.

ALPRs are cameras mounted on patrol cars or on stationary objects along roads – such as telephone poles or the underside of bridges – that snap a photograph of every license plate that enters their fields of view.  These devices may be used in a number of legitimate ways, for example, to find a stolen vehicle, a vehicle that has been used in a crime, or a vehicle believed to be carrying a kidnapped child.

But there are more disturbing uses for the ALPR.  Imagine, for example, that the police stored every one of the thousands of images captured per minute, accumulating a vast database that could show where a particular car was located on any particular day.  Or suppose an ALPR were mounted outside a controversial religious or political organization, so that police could monitor who regularly parks nearby.

In its interpretation of Virginia law, the AG opinion neatly distinguishes between permissible and impermissible use of the ALPR technology.  As the opinion explains, the use of this technology is governed by the Government Data Collection and Dissemination Act, which regulates the government’s use of personal information.  Information maintained by law enforcement agencies “that deal[s] with investigations and intelligence gathering related to criminal activity” is exempt from the statute.  According to the AG opinion, the “active” use of ALPRs — that is, using the license plate reader to identify vehicles that have already been determined to be relevant to a criminal investigation – meets that exemption and is permissible for law enforcement.

On the other hand, the “passive” use of ALPRs violates Virginia’s statute.  The Virginia State Police, which made the initial inquiry to the AG’s office, defines this kind of activity as follows:

LPR systems can also be used to collect raw data. Whether the LPR reader is mobile or fixed, the data collected includes the image of the place, the time, date and precise location the license plate in question was captured by the system. This is accomplished passively and continuously. If the LPR system is on, it will capture and store the data for every license in plain view to the public it encounters. On a routine patrol, this may include thousands of license plate numbers and locations  . . . This can, and has been an invaluable tool in developing leads in terrorism investigations and criminal cases.

In other words, the “passive” use of ALPRs creates a comprehensive database of the locations of vehicles that are not suspected of involvement in any wrongdoing.  The police can then “mine” the data for leads in investigations.

The AG opinion explains that this use of ALPRs violates the statute’s requirement that “[i]nformation shall not be collected unless the need for it has been clearly established in advance.”  Law enforcement may not simply create a database of vehicle locations, the vast majority of which have nothing to do with any criminal violations.  The fact that doing so might be efficient does not make it right.

Last fall, the ACLU of Virginia participated in a nationwide effort to obtain records from law enforcement agencies to determine how they are using ALPRs.  We will continue to monitor the government’s use of this technology to ensure that it falls within the strictures of the Government Data Collection and Dissemination Act, and does not infringe on the privacy of Virginians.  We will also stand fast against any effort to change the law in response to the AG’s opinion.  It’s not just the AG’s opinion that is correct.  It’s the current law’s careful balance between the privacy rights of Virginians and the needs of law enforcement – a balance that we encourage the legislature to bring to conversations about the use of other new technologies, including cell phone tracking and drones.

Black History Month provides us with the opportunity to reflect on how far we have come along the path to liberty and equality. It also stands as a reminder of how much farther we have to go.

Both the national ACLU and its affiliates share a proud history of engagement in the struggle for racial equality. The ACLU brought cases in the sixties attacking the segregation of juries and, in Virginia, brought the landmark case Loving v. Virginia that overturned laws against interracial marriage.  Later, the ACLU of Virginia would fight to end the prohibition on elected school boards and engage in legal and grassroots advocacy that, ultimately, would assure black voters in majority-black Brunswick County a fair opportunity to elect a board of truly representative supervisors.

In a perfect world, the re-election of the first black president would signify a firm end to Virginia’s unfortunate, racism-laden past, particularly since President Barack Obama carried the state.  Yet, this is not a perfect world and while we’ve moved on down the path, the fight for racial justice is not at an end. For during every session, the General Assembly introduces bills that threaten to slow down the momentum Virginia has gained in recent years towards racial equality.

Many of these bills stem from a strong state history of racial inequity. In the late 1800s, our Constitution was amended to include a life-time ban on voting for anyone convicted of a felony. This was largely an attempt to dilute the black vote, as many African-American men were disproportionately incarcerated at that time. Later revisions of the constitution carried forward this measure of bigotry. Finally, in 2013, when both the Governor and the Attorney General lobbied for the restoration of voting rights by means of legislative act or constitutional amendment, Virginians caught a glimmer of hope that perhaps our Commonwealth was finally making a real move towards equality. The General Assembly, however, refused even to allow Virginians to vote whether to eliminate this remnant of Virginia’s racist past from our constitution, and thus 450,000 people (a disproportionate number of whom are African-American) are left without the right to vote.

In 1902, Virginia amended its constitution and legally implemented a poll tax and literacy test. These actions were again aimed at suppressing the voting power of African Americans. In a victory for racial equality, these amendments were ultimately ruled unconstitutional by the Supreme Court and outlawed under the Voting Rights Act of 1965. But no victory goes uncontested.  Earlier this year, state legislators made a disgraceful attempt to suppress the African American vote.  While noted civil rights activist and esteemed Senator Henry Marsh was attending the inauguration of President Obama in D.C., the senate pushed through a discriminatory redistricting plan. The plan would have scattered and packed African Americans into a few overwhelmingly minority districts thereby depriving the 20% of Virginians who are African Americans much of their legislative and political influence.

If suppression by way of gerrymandering wasn’t enough, members of the 2013 General Assembly introduced a large number of voter ID bills the purpose of which was to narrow the types of identification accepted at the polls. The majority of these bills had provisions making the only valid forms of ID those with a photograph. Similar bills have been introduced in other states and have been shown to have a disproportionate impact on the poor, elderly, and minority groups. With this information in mind, it is unfortunate that the Virginia General Assembly still fought so very hard to enact such laws, particularly where there is no evidence of voter fraud at Virginia polls.

Hopefully the day will come when Black History Month can be enjoyed simply for the historic victories in racial equality and without the worry of our Commonwealth slipping back into inequality. But until that time, the ACLU will continue its ongoing mission of preserving civil liberties and defending against actions that threaten them. As progress continues to be made, you can be sure that the ACLU of Virginia will be at the forefront of that forward motion.