By Rebecca Glenberg, ACLU of Virginia Legal Director
FB-DOMA-1Yr-CAKE-504x504-V02Almost one year ago, on June 26, 2013, the U.S. Supreme Court issued its ruling in the ACLU case United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) and required the federal government to recognize the lawful marriages of same-sex couples.   The Court recognized DOMA for what it was—“a bare congressional desire to harm a politically unpopular group.”
The Windsor case dealt only with federal recognition of marriages; it did not address whether states had to provide marriage equality. But Justice Kennedy’s strong language signaled that the Court understands exactly what is at stake in the fight for marriage equality – the equal dignity of every human being.   The Court explained that DOMA was demeaning to same sex couples: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” The statute “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition” and “humiliates tens of thousands of children now being raised by same-sex couples.”
In the face of this poignant description of how refusing the right to marry harms real families, it is not easy for opponents of marriage equality to continue to defend their position.   The Windsor decision spurred court challenges across the country to laws that deny marriage to same-sex couples. At last count, courts in seventeen states – including Virginia – have struck down such laws in the last year.
As we celebrate the remarkable progress we have made in just one year, it is fitting to recall the decades-long struggle of Edie Windsor and her wife, Thea Spyer, for legal recognition of their relationship. Edie and Thea were together for forty years before they were finally able to marry in Canada in 2007.   Although their home state of New York did not then allow gay couples to marry, it did recognize marriages, like theirs, from other states and countries.   But because of DOMA, the federal government did not. When Thea died, Edie was faced with a huge estate tax. Property that is inherited from one’s spouse is exempt from the tax, but the federal government did not consider Thea to be Edie’s spouse. The Supreme Court has now recognized what was obvious to Edie and Thea from the start – that their marriage is equal to any other. (More on Edie Windsor and thecourt case is here.)
Edie and Thea’s story is emblematic of the millions of LGBT Americans who have sought equality for their families.   Following in their footsteps are the thousands of plaintiffs currently challenging laws that deny legal marriage to same-sex couples. The ACLU of Virginia is privileged to represent two amazing couples in our marriage equality case.   Joanne Harris and Jessi Duff live in Staunton with their adorable son, Jabari, and would like to marry in Virginia. Christy Berghoff and Victoria Kidd live in Winchester with their lovely daughter, Lydia. They got married in Washington D.C., but Virginia still does not recognize their marriage. (More about Joanne and Jessi, Christy and Victoria is here.)   These couples have shown extraordinary courage and commitment by stepping forward to lead the fight against Virginia’s discriminatory marriage laws.   Because our case is a class action, they represent every same-sex couple in Virginia.
We are living in exciting times. With each new court decision, the momentum builds.   Thank you, Edie and Thea. Thank you, Victoria, Christy, Jessi, and Joanne.
Want to stay informed about LGBT rights?  Continue to follow our blog, and check out our Facebook and Twitter for breaking news!  And, sign up to be a grassroots advocate.

Date

Saturday, June 21, 2014 - 3:53pm

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By Kathy Greenier, ACLU of Virginia Reproductive Freedom Project Director
reprofreedom_justice scalesToday marks the 49th anniversary of Griswold v. Connecticut.  In Griswold, the U.S. Supreme Court held that the fundamental right to privacy includes a right for married couples to use birth control. Seems obvious right?  As we’ve long argued, politicians have no business interfering in our personal (and private) health care decisions.  But, the Supreme Court’s decision to recognize this right was a landmark victory.
In 1965, the year the Supreme Court decided Griswold, many states had laws prohibiting the use and distribution of birth control.  When Griswold’s case made its way up to the Supreme Court, the Court held that the right to privacy is a fundamental right, but focused on the notion of privacy in a marital relationship.  While the Supreme Court did not focus on everyone’s right to avoid pregnancy or make reproductive choices, the seeds were planted for later cases in which the Supreme Court protected access to birth control broadly and access to abortion as part of the right to privacy, thus fully enshrining our right to reproductive autonomy.
The 49th anniversary of Griswold should remind us that not long ago, extreme state laws prevented access to critical health care services.  We cannot go down that road again and let politicians pass laws that deny our reproductive freedom.  We cannot return to pre-Griswold America.  We must protect this basic right that everyone should enjoy – the right to decide whether and when to have children.  It should be a no-brainer.

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Friday, June 6, 2014 - 1:29pm

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Virginia, we have a problem. Seventy-two percent of likely Virginia voters responding to a poll commissioned by the ACLU of Virginia agree that the criminal justice system in the Commonwealth works differently for different people depending on their income and skin color. And, nearly nine out of 10 agreed that the system needs to change.

The good news is that we can begin to fix this problem starting with the 2019 legislative session by enacting some modest reforms, and by identifying, encouraging and electing reform-minded candidates for Commonwealth’s attorney and the legislature during the 2019 electoral process.

Our poll found overwhelming support for policy reforms that would improve fairness of the criminal justice system: 84 percent of Virginians polled support reforms targeting racial disparities, and 91 percent support reforms targeting economic disparities. The ACLU of Virginia is pushing for laws that would do just in the 2019 legislative session and beyond.

Just after the first of the year, Virginia lawmakers will make their way to Richmond where they will decide the fate of thousands of bills. In a 45-day session, delegates and senators will have an opportunity to respond positively to this call for reform and finally pass legislation that would reduce racial and economic disparities in our criminal justice system.

First up is reforming the process for pre-trial detention. We need to restore the presumption of innocence to our system and implement policies and practices that ensure the release pending trial of everyone who is not a proven risk to the safety of the community. The first point of discretion in our criminal justice system is the decision whether someone should be released pending trial, and the determination of the conditions for release. Currently, a large percentage of people in our jails are being held pending a trial, many because they cannot meet financial conditions set for their release. At a recent Crime Commission meeting, staff presented data showing a sample of defendants charged in a given month were disproportionately black and male. It is no surprise, then, that the data compiled by the Prison Policy Institute show that the people held in our jails are disproportionately black. And, as we reported in our recent study on women in the criminal justice system, this problem also disparately affects women.

While some of the people being held before trial may be repeat offenders, the majority are people who have never been convicted of any crime and are being held pending trial largely because they cannot meet the financial conditions imposed on their release. And, in most of these cases, detention of these presumed innocent people likely will result in loss of employment and the ability to support their families, and for some caregivers and parents, the custody or legal responsibility for their children.

Right now, Virginia does not have a system to collect or report data concerning decisions about pre-trial release (including who gets held and who gets released, with what crimes were they charged, or what conditions were imposed on release). We know the current process leads to racially and economically disparate results, and, without consistent data collection on these decisions and reporting, we cannot know if the laws we create to address this problem will actually move us any closer to justice and away from costly, unnecessary, and often unfair detention. Delegate Jennifer Carroll Foy plans to introduce a bill to set up a system of data collection to help us monitor pre-trial release and the financial conditions (including secured and unsecured bond requirements) often imposed on release.

Another policy change that would dramatically reduce racial and economic inequalities in our criminal justice system is decriminalization of simple marijuana possession. Nearly 25,000 people were convicted of marijuana possession last year, with people of color and those with low incomes being disproportionately affected despite similar usage rates regardless of race or income. When asked if we should continue this practice, seven in 10 voters in our poll said no.

From Arlington to Ashland, Williamsburg to Wise, young, old, conservative and liberal – 71 percent of voters support eliminating criminal penalties for the possession or use of small amounts of marijuana. The ACLU of Virginia supports legislation that would eliminate all criminal and civil penalties for simple marijuana possession. To reduce disparate policing, we cannot just change the tool used by police from a criminal to a civil summons, however; we must take the enforcement tool out of their hands, making simple possession a private matter not subject to government sanction.

While it is good to remove the criminal sanctions from the current law and alleviate the collateral consequences of a possible criminal conviction (as SB 997 introduced by Senator Adam Ebbin would), as long as the police have the power to issue a summons for possession or use, they have a means to continue to use “smelling marijuana” as a justification for traffic and street stops and an excuse for disparate policing. Even better than decriminalization would be legalization of marijuana, which the ACLU of Virginia supports along with 63 percent of the likely Virginia voters we polled.

Third, we need to address conditions of confinement including ending the use of solitary confinement in our prisons and jails, particularly given the fact that 40% of the people in our jails have a mental health or addiction problem. Solitary confinement is the practice of isolating people in a small, individual cell 22-24 hours a day and depriving them of human contact, exercise, natural light and other stimulation. On average, we believe that those placed in solitary confinement in Virginia prisons stay there for 2.7 years. We don’t really know, however, how many people are being placed in solitary confinement or why because its use is entirely unregulated. We also don’t know how many within that population are mentally ill or members of other vulnerable groups. To fix the system, we need more information about current practices so that we can craft real solutions. House Bill 1642 will require the Virginia Department of Corrections (VDOC) to collect this information and report it to the governor and legislature each year. Two-thirds of the Virginians we polled understand our current criminal justice system is not the right way to address mental health and drug addiction issues. To move beyond that, we need data, and these transparency bills are a modest first step to getting it at least with respect to one particularly harmful practice that exacerbates rather than alleviates the current problems associated with how we address mental health and addiction in the Commonwealth.

Regardless of what happens this session, reforms that will make Virginia a more just and fair place are gaining popularity. Last November, Chesterfield County elected a candidate who ran on a platform promoting transparency, treatment and rehabilitation over the failed “tough-on-crime” tactics of years gone by. It is clear from this that voters are ready for change. In 2019, every member of the General Assembly and all 120 county Commonwealth’s attorneys will be up for election. It is time for policies that eliminate racial disparities, take care of our mentally ill, and promote justice based on the facts of the case - not the size of your wallet or the color of your skin.

Date

Wednesday, December 12, 2018 - 4:15pm

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