A PUBLICATION OF THE NEW JERSEY STATE BAR FOUNDATION Fall 2013, Vol. 13, NO. 1 A NEWSLETTER ABOUT LAW AND DIVERSITY Marriage Equality Gains Ground with Landmark Rulings by Jodi L. Miller This past June, the U.S. Supreme Court handed Hollingsworth v. Perry. The Windsor case involved down two important decisions regarding marriage Edith Windsor and Thea Spyer, a New York couple equality, giving the gay rights movement hard- who had been together for more than 40 years and fought victories. were legally married in Canada in 2007. Upon her Support for marriage equality is on the rise. death in 2009, Spyer left her entire estate to Windsor. According to a recent Pew Research Center poll, When Windsor sought to claim the federal estate tax 51 percent of Americans favor same-sex marriage, exemption available to surviving spouses, she was which is up significantly from a 2009 poll when just denied due to the federal Defense of Marriage Act 37 percent favored it. Even American Catholics support (DOMA), which states that the term “spouse” only same-sex marriage by 54 percent, according to a applies to marriage between a man and a woman. Quinnipiac University Polling Institute survey released She was forced to pay more >continued on page 6 in March 2013. By June 2013, 13 states and Washington, D.C. had legalized same- sex marriage either by legislative action, About Face—Military Changes Stance popular vote or through the courts. on Women in Combat Twenty-nine states ban same-sex by Barbara Sheehan marriage outright, either by statute or in their state constitutions and seven Women have officially been part of the U.S. military since states, including New Jersey, offer 1948 when President Truman signed the Women’s Armed alternatives, such as civil unions or Services Integration Act. Unofficially, women have served their domestic partnerships in lieu of marriage country during wartime since the Revolutionary War. (see sidebar for the status of same-sex In modern times, U.S. servicewomen have typically been marriage in New Jersey). shut out of ground combat positions; however, that changed New Mexico is the only state that in January 2013 when military leaders ended the ban that kept has no laws regarding same-sex women off the front lines and away from some of the most marriage. It neither recognizes them nor dangerous assignments. With the lift of this ban, women—who prohibits them. In September 2013, the make up about 14 percent of U.S. armed forces—will now have a New Mexico Supreme Court agreed to chance to serve in combat alongside men. hear a case that will likely decide whether Even though women were officially restricted from certain same-sex marriage will become legal combat assignments by the ban, the reality is that a number of in the state. A hearing is scheduled for servicewomen have supported combat battalions in Iraq and October 23rd. Afghanistan in many ways, including as drivers, medics and intelligence officers. In addition, women are also currently flying Defending marriage? combat aircraft, such as helicopters and carrier-based Navy The two cases the Court considered >continued on page 4 were United States v. Windsor and Race and the Death Penalty— This publication was made What Does It Reveal About Our Criminal Justice System? possible through funding from by Phyllis Raybin Emert the IOLTA Fund of the Bar of New Jersey. According to Amnesty International, an execution of African Americans,” wrote Fraser, Angela C. Scheck organization committed to ending human “is irrefutable proof of the racism inherent in the Executive Editor rights abuses, of the 198 countries in the institution of capital punishment.” Jodi L. Miller world only 20 still carry out death penalty According to a study published by the Legal Editor executions. In 2011, the top executioner was Defense Fund of the National Association for the Editorial Advisory Board China, which killed more people than the rest Advancement of Colored People (NAACP), as of of the world combined. Gwendolyn Yvonne Alexis, Esq. October 2009, America’s death row houses 3,263 Chair The United States comes in fifth on Amnesty inmates. Of those inmates, 44.35 percent were International’s list, preceded by Iran, Saudi Arabia white, while 55.63 percent were classified as Engy Abdelkader, Esq. Mary M. Ace, LCSW and Iraq. Today, 32 states still allow capital non-white. Of those non-whites, 41.53 percent Lisa H. James-Beavers, Esq. punishment (New Jersey does not). According were African American. These statistics seem Maha M. Kabbash, Esq. to the Death Penalty Information Center (DPIC), disproportionate when you consider that according Ronald G. Lieberman, Esq. a Washington, D.C. non-profit organization that to the U.S. Census Bureau in 2008, African Louis H. Miron, Esq. analyzes issues relating to capital punishment, Americans account for only 12.8 percent of the Anna P. Pereira, Esq. 1,342 executions have been carried out in the total population of the United States. According Margaret Leggett Tarver, Esq. United States between 1976 and August 2013. to writer Sophia Kerby of americanprogress.org, Dr. Paul Winkler The South is responsible for more than 80 percent that is because “people of color continue to New Jersey State Bar of all executions and Texas, with a little over 500, be disproportionately incarcerated, policed, and Foundation Board of Trustees has put to death more people than any other sentenced to death at significantly higher rates Louis H. Miron, Esq. state. than their white counterparts.” President Most criminologists agree that the death In an interview for Time magazine, David Dow, Steven M. Richman, Esq. penalty does not act as a deterrent to criminal a defense attorney in Texas and once a strong First Vice President activity. In October 2009, the Council of the supporter of the death penalty, said, “Once I Patrick C. Dunican Jr., Esq. American Law Institute (ALI), the organization that started doing the work, I became aware of the Second Vice President provided the Model Penal Code or the framework inequalities. I tell people that if you’re going to Lynn Fontaine Newsome, Esq. for today’s capital punishment system, disavowed commit murder, you want to be white, and you Treasurer the structure it created. The concerns cited by want to be wealthy–so that you can hire a first- Susan A. Feeney, Esq. ALI included the monetary expense of the death class lawyer–and you want to kill a black person. Secretary penalty, the risk of executing an innocent person And if [you are and do], the odds of your being and the fact that capital punishment is plagued by sentenced to death are basically zero.” Trustees racial disparities. Gwendolyn Yvonne Alexis, Esq. U.S. Supreme Court death penalty decisions Paulette Brown, Esq. First there was slavery… Paris P. Eliades, Esq. In the 1960s and 70s, the Legal Defense Eli L. Eytan, Esq. In his article titled, “The Death Penalty and Fund of the NAACP led constitutional challenges Kathleen N. Fennelly, Esq. Racism,” which appeared in The American alleging racial bias and the cruel and inhumane Norberto A. Garcia, Esq. Interest magazine, writer Charles Lane noted, nature of the death penalty. These challenges Hon. C. Judson Hamlin “Between 1930 and 1967 (at which point resulted in the 1972 U.S. Supreme Court decision Robert B. Hille, Esq. executions stopped pending a decade-long in Furman v. Georgia, in which three death penalty John E. Keefe Jr., Esq. Supreme Court overhaul of the death penalty), appeals were combined. Two African Americans William A. Krais, Esq. 54 percent of the 3,859 people put to death were separately sentenced to death in the South Ralph J. Lamparello, Esq. under civilian authority in the U.S. were African for raping white women, and another African Stuart M. Lederman, Esq. Bryan Lonegan, Esq. American.” American received the death penalty after killing Jeffrey J. McWeeney, Esq. In an article that appeared in Social Sciences a white man in the course of a burglary that went Anna P. Pereira, Esq. Journal, Michael Fraser of Western Connecticut wrong. In a 5 to 4 decision, essentially outlawing Thomas H. Prol, Esq. State University noted there is a deep-rooted the death penalty, the U.S. Supreme Court ruled Robert J. Stickles, Esq. connection between slavery, the dominance that capital punishment violated the Eighth and Miles S. Winder III, Esq. of whites in the South, the lynching of blacks, Fourteenth Amendments of the constitution and the death penalty today. “The rise in the because it was a cruel and unusual punishment. ©2013 New Jersey State Bar Foundation >2 Lane noted in The American Interest were the most likely racial group to be than race to explain why black jurors were magazine article that Justice William O. sentenced to die, the study showed. dismissed at twice the rate of white jurors. Douglas in Furman stated that “racial The study also revealed that of the 160 disparities were part of what made the McClesky v. Kemp inmates on North Carolina’s death row, death penalty ‘cruel and unusual’ under the The Baldus study played a major role 31 were convicted by all-white juries. 8th Amendment, and other justices alluded in the 1987 U.S. Supreme Court decision Most of North Carolina’s prisoners to race in their analyses of the penalty’s in McCleskey v. Kemp, in which an African on death row filed appeals under the arbitrariness.” American man was sentenced to death for Racial Justice Act and four prisoners were In response to Furman and to eliminate killing a white police officer during a robbery.