The Annual Update of the Aclu's Nationwide Work on Lgbt Rights and Hiv/Aids
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THE ANNUAL UPDATE OF THE ACLU’S NATIONWIDE WORK ON LGBT RIGHTS AND HIV/AIDS We can, in a generation or less, win what seemed hardly a dream but a few years ago... a world in which discrimination against LGBT people is no more. American Civil Liberties Foundation LESBIAN GAY BISEXUAL TRANSGENDER & AIDS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 212-549-2627 [email protected] aclu.org/lgbt aclu.org/hivaids LGBT & AIDS ANNUAL UPDATE 2007 Table of Contents 5 INTRODUCTION 77 CONTRIBUTORS 8 The “Unitary Executive,” Anti-Gay Constitutional Amendments, 87 ABOUT US and the Trashing of Basic American Values 88 STAFF PARENTING 90 COOPERATING ATTORNEYS 14 Reporting the Truth About the Science on LGBT Parenting 16 Parenting Docket SCHOOLS & YOUTH 22 Stifling Student Speech Threatens Equality for All Americans 24 Schools & Youth Docket RELATIONSHIPS 36 Can 10 Couples Change the World? 38 Relationships Docket TRANSGENDER 50 Bias Behind Bars: Transgender Inmates Face Discrimination 52 Transgender Docket DISCRIMINATION 58 Civil Rights Protections Needn’t Threaten Religious Freedom 60 Discrimination Docket HIV/AIDS 70 The High Price of Easing HIV Testing Regulations 72 HIV/AIDS Docket INTRODUCTION Freedom has never been the price of safety. Instead of security, giving up free dom has always bought us shame and regret. n the price of safety. Instead e dom has always bought us 8 Introduction The “Unitary Executive,”Anti-Gay Constitutional Amendments, and the Trashing of Basic American Values philosophers, the federal and all state constitu- executive abuse. Woodrow Wilson’s administra- BY MATT COLES tions split government into a policy-making tion blew off the courts and ran raids on political branch (Congress or the state legislatures), an dissidents without warrants or evidence of wrong- operations division (the executive) and a dispute doing. Franklin Roosevelt locked up Japanese- resolving system (the courts). The thinking was Americans in the 40s, forcing many to forfeit that dividing the government would keep any of its everything they owned in the process. It’s hard to parts from getting so much power that it could know where to begin to describe what Richard trample basic liberties. Critical to making the divi- Nixon tried to do—and did. sion work was the system of checks and balances: each part of government had some power over These past campaigns to consolidate power taught the other, and most critically, the weakest branch, us two things. First, the framers were right: divid- Twenty-seven For those who admire the American constitutional the courts, had the power to see to it that the other ed government does help protect liberty. Second, states have passed system, few things could be as distressing as branches stayed within constitutional limits. no matter the threat, abandoning the design has President Bush’s campaign to dismantle it. For never been necessary. Freedom has never been constitutional amend- LGBT people, few things have been as distressing President Bush’s lawyers insist that the federal the price of safety. Instead of security, giving up ments banning mar- as the decision of voters in 27 states to amend their constitution’s division of powers is no longer freedom has always bought us shame and regret. constitutions to keep same-sex couples from get- workable. Honoring it, they say, will make it riage for same-sex ting married. However, constitutionalists should impossible to for us to protect ourselves. The only That this president’s effort to junk the separation couples. Most of them also be deeply worried about those state amend- answer, they say, is an unwritten rewrite of the of powers is likely to bring more shame and regret ments, and gay people should be deeply worried Constitution, concentrating power in the execu- seems clear. And as it proceeds in Washington, also ban civil unions about the president’s push to get America to accept tive. The president, they say, should need no people are junking the separation of powers at the and comprehensive a “unitary executive.” In fact, everyone who depends authorization from a court to wiretap, no permis- state level in order to head off same-sex marriage. on the American constitutional system’s promises sion from Congress to set up prisons overseas or domestic partnerships. of equality and autonomy are threatened by both to create new systems for charging and trying Twenty-seven states have passed constitutional the president and the state marriage amendments. those accused of crimes. The courts, they say, amendments banning marriage for same-sex should have no power to call the president to couples. Most of them also ban civil unions and The Constitution’s reputation for greatness mostly account for holding people without charges or for comprehensive domestic partnerships. rests on the promises set out in the Bill of Rights acting without authorization from Congress. and the 14th amendment; promises of rights to These are not laws against marriage and civil belief and expression, autonomy and equality. But George Bush is hardly the first president to try to unions. Every state but one that has passed a con- for those who wrote the Constitution, the decen- unbalance the checks and balances of divided stitutional marriage amendment already had a tralization of power—the “separation of powers”— government. Abraham Lincoln suspended the law excluding same-sex couples from marriage. was at least as important as a guarantee of liberty. writ of habeas corpus during the civil war, signifi- Instead, these amendments take away the power Following models proposed by 18th century cantly limiting the power of the courts to check of state legislatures ever to open marriage, or pro- 9 vide any other comprehensive protection, for Local activists urge Idaho voters to reject HJR 2, a proposed same-sex couples. In addition, they take away the constitutional amendment to ban both marriage and civil unions power of the courts to decide if keeping same-sex for same-sex couples. Voters approved the amendment. couples unprotected can be squared with state constitutional promises of equality and fairness. This is every bit as radical a revision of constitu- tional design as President Bush’s is. Most critical- ly, both destroy the crucial check of the courts for fairness and even-handedness. Revisionist popu- lar history to the contrary, that check has rarely been popular at the moment of exercise. “Impeach Earl Warren” billboards were once a feature of most American highways. But it has been singularly important in preserving liberty. Moreover, both the president’s revision and the amendments take the power to make policy away from a representative body. True, in the president’s plan, the representative body—Congress—cedes power to the president, while in the design of most of the state amenders, any power to protect one minority—gay people—is completely extinguished. But the separation of power in the state and fed- eral systems was aimed not only at protecting against a runaway branch; it was also designed to check “passionate” majorities bent on imposing their will at the expense of other people’s rights. We put the power to make policy in a representa- tive body instead of having direct lawmaking to bring reflection to the process and temper the passions of the majority. 10 Introduction About the only thing that could get Americans to movement in the 60s, there were a handful of stitution to ban affirmative action, or employment jettison the basic principles of their constitutional amendments. On marriage, there is a good for noncitizens, or… system is real fear. And like the president’s argu- chance we’ll reach 30 in a few years. ment for the “unitary executive,” the argument for “Separation of powers” may seem like a political the amendments is based on fear. If the constitu- There are obvious immediate dangers in what the philosopher’s abstraction, but the consequences tions aren’t amended, the argument goes, at some president is doing—people will be arrested, some of abandoning it are hardly abstract. Our republic point in the future state courts or state legislatures will be tortured, some will die—and in what the has endured because of respect and restraint. For will decide that it is not fair to exclude same-sex states are doing—changing the Constitution to most of us, even though we think a person’s ideas couples from the legal protections of marriage. harm an unpopular minority. But there is a less repugnant, we accept the right to have and obvious danger lurking in the fact that both are express them. We believe in equality before the What makes the appeal to fear of the courts and happening at the same time. Once you decide to law, even for people we think stupid or abusive. the legislatures so effective is that the opponents junk one crucial part of the constitutional system of marriage can’t seem to come up with a good because you think it inconvenient, it becomes all Once we decide that convenience trumps restraint argument that it is fair to exclude same-sex cou- too easy to start thinking about junking others and respect, we’re finished. No document, no ples from marriage. If there isn’t any good argu- which also seem inconvenient at the moment. matter how thought-through, can endure in the ment that the exclusion is fair, it is hard to believe teeth of a people who no longer accept it. And once that at some point the courts or the legislatures After Lincoln’s, Wilson’s, Roosevelt’s and Nixon’s we give up that restraint and respect, everything won’t put an end to it.