Author Archives: Sheila

Void for Vagueness

One of the most difficult constitutional principles to teach, for reasons I really don’t understand, is the rule that in order to be constituional, a law must be sufficiently precise to allow citizens to know what behaviors will be sanctioned. If a law does not meet that standard, we say it is “void for vagueness.” (This is the problem with so many “anti-pornography” efforts; one person’s porn is another person’s erotica, as Nadine Strossen once put it.)

A good example of the problem with overbroad and vague prohibitions is the patriot act provision being challenged in this case, which the Supreme Court will hear this term.

Homophobia at Purdue

The local media recently reported on a controversy at Purdue, where a professor had posted anti-gay opinions on his private website. Not long afterward, I had a call from a student who was curious about my opinion of the situation. She knew me as a strong proponent of equal rights, so she wanted to know what I thought about Purdue’s decision to do nothing about this expression of anti-gay animus.

As I told her, Purdue was exactly right.

The posting was not to an official Purdue site; there was no likelihood that the sentiments would be attributed to the University. It was a private opinion, expressed by someone with whom I strongly disagree. Purdue is a government entity; the whole point of the First Amendment’s Free Speech clause is to prohibit government from censoring or punishing people who say unpopular or disagreeable things.

To put it more bluntly, even jerks have First Amendment rights.

 I spent six years as the Executive Director of the Indiana ACLU battling similar efforts to make the government control what others can read, hear or download. During that time, I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when we objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the clear potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.

Most of us, I hope, cringe when someone uses a racial or religious insult, or otherwise denigrates people based upon their race, religion or sexual orientation. But in a free society, the appropriate response is education, not suppression. It is more and better speech—not censorship.

Well-intentioned as some of these efforts may be, what they signal is a profound lack of respect for the rights of others to hold wrong opinions, or opinions contrary to our own.

When we are faced with expression that offends us—that is uncivil or unfair or hateful—we have an unfortunate tendency to confuse a defense of the speaker’s right to free speech with an endorsement of the contents of that speech. So an argument that government cannot—and should not—ban offensive videos, or the Klan’s despicable rhetoric, or hate speech directed at marginalized groups, is seen as an endorsement of the pornography or racism or other hateful sentiments.  It isn’t. 

America’s founders understood that ideas have consequences. They also understood a profound truth: giving government the power to decide what ideas are acceptable is much more dangerous than even the most dangerous idea.

Lessons from the Dark Side

The defeat of equal marriage rights in Maine was a gut-wrenching blow to gays and civil libertarians alike. There is something profoundly wrong with having to ask to be treated equally by your government. Equal rights should not be subject to vote—the entire purpose of the Bill of Rights was, in Justice Jackson’s memorable words

“to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Nevertheless, until that principle is extended to the LGBT community, last month’s election should be an opportunity to consider and evaluate the political options available.

One option—the course of action requiring the least effort—is simply to wait. Every time there is a vote on one of these referenda, those on the side of denying rights to gays and lesbians win by a narrower margin. Poll after poll tells us that most people on the wrong side of history are old; younger voters support gay equality by substantial margins. When my generation dies off, this conflict will be over.

The better option, however, is to take a lesson from the rabid right-wingers who managed to capture the Republican Party in the space of relatively few years. They accomplished that by participating in the party’s grass-roots politics—running for precinct committeeperson, school board, city council. From those relatively humble positions, they were able to support the candidates who agreed with them, and ultimately drive most moderates and a fair number of thoughtful conservatives out of the GOP entirely.

On the same election day that saw same-sex marriage lose in Maine, a number of openly-gay candidates were elected to public office. It is time to take advantage of the willingness of voters to elect gay and lesbian candidates. But in order to do that, GLBT folks have to be willing to get involved at those grass roots.

Let me give an example of what I mean. Here in my own city, I know of at least one openly-gay candidate who intends to go through Democratic party slating, and if slated, to run for our City-County Council. The decision who to slate is made by the party’s precinct committeemen. The most effective tactic the community can use is to encourage as many gay and gay-friendly people as possible to run for precinct committeeperson. I don’t know how it is elsewhere, but in my city, both parties are desperate to fill committeeman slots. Anyone willing to do the grunt work required is very likely to be successful.

Why elect openly gay candidates? Assuming that the people involved are otherwise good candidates—that they will be good public servants who represent all of their constituents—we can expect several outcomes. Let me just suggest two: for one thing, the electorate will see competent people who happen to be gay in positions of authority; that changes attitudes. (If you don’t believe me, think about the impact of Obama’s election in the African-American community!) For another, elected officials can influence legislation and policymaking. If you don’t believe me, look at what has happened to the GOP—and unfortunately, to the rest of us—in the wake of the radical right’s capture of that party. Even when they are unable to pass legislation, they’ve proven adept at preventing it.

And wouldn’t it be satisfying to turn the homophobes’ tactics against them?

The Problem with Faith-Based Contractors

There really is no constitutional problem with government contracting with religious organizations for purely secular services. The state can purchase medical care or babysitting or welfare services from any organization, religious or secular, having the capacity to deliver those services in a constitutionally appropriate way–i.e., without proselytizing vulnerable populations, etc.

A problem that is rarely discussed, however, has become painfully obvious in Washington, D.C.

The Catholic Archdiocese of Washington has announced that it will be “unable” to continue the social service programs it runs for the District if the city passes a proposed same-sex marriage law, a threat that could affect tens of thousands of people the church helps with adoption, homelessness and health care.

So–do we allow religious organizations to make their continued participation in these programs contingent upon the District’s denial of fundamental rights to gays and lesbians? Or to put it another way, can the government give in to demands that its public policies be consistent with the religious beliefs of a contractor?

One of the problems with privatization in general is that too often, it is accompanied by a “hollowing out” of governmental capacity to provide essential services. In such cases, the contractor–secular or religious–has officials by the proverbial “short hairs.”

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