Tag Archives: Indiana

Truly Torn

Oh, Mike Pence! Sometimes you do confound me! Apparently, you’ve accidentally done something good!

According to a recent report in The Indiana Lawyer, 

Under the administration of Gov. Mike Pence, legal fees paid to the American Civil Liberties Union of Indiana have soared beyond $1.4 million and may approach $2 million, according to an Indiana Lawyer analysis. The $1.4 million total does not include fees that have been or will be paid in the current fiscal year ending June 30 or other legal fees ACLU claims are owed by the state. The fees represent the state’s payment of legal bills to parties who prevail in federal court on claims that government action violated their constitutionally protected civil rights.

Regular readers of this blog will remember that I spent six years (1992-98) as the Executive Director of Indiana’s ACLU. Those were rewarding years in so many ways–I learned so much and met so many wonderful people; it was so gratifying to be part of an organization that defended individual liberties…..

But I must admit that the most vivid memory I took with me when I left the ACLU for academic life was the constant pressure of fundraising. We had wonderful lawyers and dedicated clerical staff, and we all worked for a pittance–but I had to raise that pittance. The ACLU only has two sources of income: charitable gifts (fundraising) and legal fees.

And legal fees aren’t a given. The organization only gets legal fees when it wins a lawsuit and the law allows such recovery. Even when the organization is successful and the case is a fee-generating one, it can take years of litigation–first, the case itself, then a fight over fees…

So I really, honestly do want to thank Governor Pence for his largesse to Indiana’s ACLU. I mean, $2 million dollars is a windfall! It should allow the ACLU some much-needed “breathing room,” some assurance that it will “be there”–in a position to protect LGBT Hoosiers from discrimination, reproductive rights from theocratic lawmakers, public school students from government-imposed prayer, law-abiding citizens against official overreach…Well, you all get the idea.

Here’s another idea: Each time Indiana’s constitutionally clueless Governor and AG lose another case to the ACLU, let’s all send the ACLU a few extra dollars to celebrate. Because after November, I have a feeling this bonanza may dry up….and Jane Henegar, the wonderful current Executive Director, will have to resume her begging.

Send a few bucks to Indiana’s ACLU in “honor” of Governor Pence.

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States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
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Pence’s ‘Rap Sheet’

Yesterday’s quiz was evidently a big hit, so I thought I’d try another one. For this one, however, Hoosiers will have a big advantage.

The fact that I am no fan of Indiana Governor Mike Pence will hardly come as a surprise to readers of this blog. (I have this old-fashioned notion that people running for political office should have an interest in governing and an acquaintance with the Constitution….).

If my Facebook feed is any indication, I have a lot of company. The other day, I came across several posts identifying the various reasons Pence does not deserve re-election, and I thought it might be interesting to compile them into what I will call the Governor’s “rap sheet.”

Here, in no particular order, are the grievances I noted:

  •  In 2012, Glenda Ritz was elected Superintendent of Public Instruction with more votes than Pence received. Subsequently, the Governor has done everything in his power to obstruct Ritz, to eviscerate her authority, and (not so incidentally), to make war on public education in Indiana, by–among other things–diverting desperately needed resources to the most extensive voucher program in the country.
  • When citizens posted objections to the Governor’s priorities to his Facebook site, the negative comments mysteriously disappeared.
  •  RFRA (need I elaborate?) This bit of homophobia has cost the Indiana economy millions and has made “Hoosier Hospitality” a punch line.
  • Pence and his legislative super-majority have waged a sustained attack on women’s right to choose, and on Planned Parenthood. Tax dollars have been diverted to “pro-life” organizations, and Indiana recently passed the most draconian and offensive anti-abortion bill in the country.
  • There was the ill-fated effort to create Indiana’s very own Pravda. 
  • The Pence administration has been an enthusiastic supporter of  “privatized prisons.”
  • The Governor ignored the drug and HIV/AIDS epidemic in Scott County until it was a full-blown crisis, and even then was unwilling to respond with a comprehensive approach.
  • He refused to apply for a federal grant that would have supported pre-school expansion for low-income children.
  • He refused to expand Medicaid under the terms of the Affordable Care Act, despite the fact that the federal government would have paid the entire cost for 3 years and 90% thereafter; his substitute program–which became effective after a significant  delay–provides more limited healthcare to fewer Hoosiers than would otherwise have been the case.
  • He has directed Indiana’s Attorney General to spend time and money on a number of lost-cause cases: anti-LGBT efforts, resistance to environmental regulations; to rejecting refugees.

So here’s the quiz question: What have I missed?

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UnAmerican Activities–War on Women Edition

Several readers have asked me why I haven’t written anything about Indiana’s horrific House Bill 1337.

To be honest, words fail. Once again, national news outlets are using Indiana as an example of right-wing extremism untempered by even a hint of compassion or common sense.

As Salon noted, if it is somehow upheld, this measure–on Mike Pence’s desk for a signature that is a foregone conclusion–will end virtually all abortions in the state.

The legislation authorizes an entire menu of grotesquely unconstitutional anti-choice TRAP(Targeted Regulation of Abortion Providers) laws, as well as new forms of authoritarian, misogynistic devilry, each of which could be defined as reproductive Jim Crow laws. Put another way, the new Indiana bill is in keeping with a series of laws that don’t outright ban abortion, but which makes it really, really difficult to have a safe and legal abortion.

The bill is a mashup of grisly, gratuitous measures having no purpose whatsoever other than to punish women who choose to exercise their constitutional right to terminate a pregnancy.

The bill itself is an abortion. It requires burial of the fetus–a funeral for what in most cases is little more than a microscopic clump of undifferentiated cells. It mandates fetal ultrasounds. It requires the woman to listen to the fetal heartbeat (despite the fact that, in many if not most cases, the procedure occurs too early to allow detection of a heartbeat).

The fetal heartbeat screening and the ultrasound procedure have to be conducted 18 hours prior to having an abortion. What makes this waiting period particularly vile is that previous TRAP laws have closed most of Indiana’s abortion clinics, leaving just four counties out of 92 with abortion facilities. In other words, if you choose to terminate, you’ll likely have to travel not-insignificant distances in order to find a clinic. From there, you’ll have to bed down at a hotel or elsewhere while your 18 hour waiting period winds down. Yet another expense on top of the abortion itself.

There’s much more, but by far the most offensive provision–in a bill filled with offensive provisions–requires a woman to carry a pregnancy to term if the motive for the abortion is that the fetus is deformed or disabled.

Think about that. The men at Indiana’s General Assembly have decided that they know best whether a woman who finds herself pregnant with a profoundly damaged fetus has the financial and/or emotional resources to spend the rest of her life caring for a disabled child. These legislators know better than the woman and her husband–who may have desperately wanted the pregnancy–the emotional toll of giving birth to a child who cannot live more than a few hours or weeks after birth.

And don’t get me started down the legal rabbit-hole of determining a pregnant woman’s “real” motive for aborting.

As one ob/gyn observes, this bill is just another assault in social conservatives’ dogged and persistent war on women’s autonomy. It is all about control. There is nothing medical about it.

The truth is, these legislative fights over reproductive choice aren’t really fights about the decision to abort. They are fights about who gets to make the decision. 

Giving government the right to decide whether an individual woman should carry a pregnancy to term is no less dangerous than giving government the right to dictate her reading material or religious affiliation. The Bill of Rights rests on the Founders’ belief that—although individuals may certainly make bad or dangerous choices—empowering government to make those choices for us is far more dangerous.

The government that can prohibit abortion today can require it tomorrow. Ask the Chinese.

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Stop the World–Mike Pence Wants Off

Religion News Service reports on an interesting recent survey in which people were asked about the purported conflict between religious liberty and civil rights for LGBT Americans.

The short version? Most Americans oppose religious exemptions to LGBT non-discrimination laws.

The details?

  • 71 percent– including majorities in all 50 states and 30 major metropolitan areas — support laws that would protect gay, lesbian, bisexual and transgender people from discrimination in jobs, housing and public accommodations.
  • 59 percent oppose allowing small-business owners in their state to refuse service to gay and lesbian people, if doing so conflicts with their religious beliefs.
  • 53 percent of Americans support same-sex marriage, compared with 37 percent (including most evangelical Protestants and Mormons) who oppose it.

Even among groups opposed to same-sex marriage, support for protection from discrimination crosses all “partisan, religious, geographic, and demographic lines,” according to Public Religion Research Institute CEO Robert P. Jones.

The survey results demonstrate something that many of us have suspected: opposition to civic equality for LGBT folks is not coming primarily from religious denominations or organizations. (Click through to see the breakdown.) Anti-gay bias is primarily a political position, not a religious one, and the difference between the political parties is stark: the survey found that 74 percent of Democrats but only 40 percent of Republicans support civil rights protections for LGBT citizens.

Of course, that’s little comfort for those of us who live in blue cities located in bright red states like Indiana.

In our gerrymandered state, it would take a lot of organization, a lot of energy, and a truly superior “get out the vote” effort even to reduce the legislative super-majority enjoyed by the GOP. But those of us who disapprove of the legislature’s failure to add four words and a comma to the state’s civil rights law—and those of us embarrassed by our Governor’s homophobic and theocratic impulses—do have the opportunity to send a very clear message to the political establishment by decisively defeating Governor Pence this November.

Unlike the majority of religious folks, Mike Pence hasn’t come to terms with social progress. It isn’t just LGBT Hoosiers; his views on education, the environment and women are wildly at odds with the views of most of our citizens. His disinterest in the nitty-gritty of governing, and the damage he’s done to the state’s business climate, make him eminently beatable.

Maybe we can’t stop the world to let him off—but we can retire him and get on with the business of making Indiana a state that welcomes everyone.

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