The lights of local TV cameras seeking gay-on-the-street sound-bites illuminated the darker part of Broadway on the Upper West Side where thousands of people marched the other night chanting, "Gay, straight, black, white, marriage is a civil right."
I was one of them, upset and disillusioned that a right could be so easily eliminated for an entire group of people that included me. Sure, New York has never allowed same-sex marriage. But it was a right granted in California until a simple majority of voters decided that gay relationships weren't equal to their own.
I joined up with the march in progress at West 66th Street, in front of Manhattan's Mormon Temple. The spot was significant because California's constitutional amendment was bankrolled largely by the Mormon Church, which urged its members nationwide to donate tens of millions of dollars to stop gay couples and their families from receiving the same legal recognition and protections everyone else enjoys.
"Two-four-six-eight, separate church and state," the crowd shouted.
I couldn't agree more. Working for the American Civil Liberties Union, I know this concept is what allows America to be America — we may not be each other's cup of tea in our beliefs and actions, but somehow we have to find a way for a variety of kettles to peacefully share the stove.
But some of the protest signs were especially ugly and demeaning to the Mormon faith. One sign made fun of the protective, spiritual undergarments worn by Mormon men: "Keep your holy undies out of our business!"
I chuckled. But it bothered me to consider doing to the Mormons what they did to me — and they did pay for some disgusting and deceitful TV ads in their campaign to eliminate my rights. As a civil liberties advocate, I should follow Voltaire's notion of defending the rights of those I disagree with.
News crews from the New York media market seemed to have a TV camera and correspondent at every block, interviewing marchers. I wondered what I would say if stopped. I realized that I would have to say that I'm not protesting the right of Mormons to believe or say that gay unions are wrong and sinful. The First Amendment guarantees them the right to decide who they deem worthy of membership and marriage in their church. It also lets them preach what they want, even at our front doors.
What I was protesting was the obliteration of that delicate tea-cup-and-kettle system I like to envision as the church-state balance. I thought about divorce. Mormons detest it. Yet the state allows it and some 50 percent of straight couples do it. And still, Mormon families seemingly flourish in spite of it. Why the need to ban gay unions if there isn't a need to eliminate the right of divorced people to marry? Why can't gay couples get a marriage license at city hall and just not be allowed to marry in a Mormon temple? There's precedent for it. Catholics, Muslims and Jews aren't allowed to marry in Mormon temples, but they still all sign the same state-issued marriage certificate before going off to have their own ceremonies in a place of worship that welcomes them. Can't gay couples be treated the same?
As I marched past the Mormon temple toward Columbus Circle, I could understand why so many of the protesters were directing their anger at the church. We are not a Mormon nation, as much as we are not a Baptist or Pentecostal nation. So it is painful when any religion forces all of us to live their way by altering the Constitution upon which all our laws are based. But when this initial sting of anger passes, I hope we can use the rights of speech and assembly still afforded to us in the Constitution to win back the fundamental right of marriage we lost in California, and have yet to gain in other states. And that means not trying to destroy the rights of Mormons or anyone else who wants to believe our relationships are less than theirs.
In the marketplace of ideas, the best idea will win. So far in our nation's history, despite long odds and terrible setbacks, equality has been a winning idea. We don't need to bash Mormons to prove that gay couples deserve equal treatment by the state. What Mormons believe is up to them and maybe they'll change (they did finally allow African-Americans to become full members in 1978) and maybe they won't. There will always be disparate kettles trying to share space on the American stove.
What we can do is a better job of crying foul the next time a group tries to upset the church-state balance. We can also make our case with a more diverse audience. After all, there isn't a racial, cultural or religious tea party that doesn't have gay attendees. Mormons included.
NOTE: In my work for the ACLU, I produced a short video about three gay and lesbian couples who show us the human cost of denying people the fundamental right to marry. The video premiered in the days before the voters in California passed Proposition 8, taking the right to marry away from gay and lesbian couples. Now in the wake of this devastating vote, the video has gained even more relevance: thousands are watching to see firsthand what is at stake in all 48 states where equality is denied to gay and lesbian families. I'd like to post it here again as a reminder to the ACLU audience that this video has proven to be a powerful tool in putting a human face on the issue.
Please share it with others.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.