Wisconsin to Allow Same-Sex Marriage

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Category: Civil Rights, Human Rights, Public, Seventh Circuit, U.S. Supreme Court, Western District of Wisconsin
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wedding cakeOn Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.

Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Read more »

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The Gender Binary

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Category: Constitutional Law, Family Law, Human Rights, Public
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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless. Read more »

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Still Dreaming: The 50th Anniversary of the March on Washington

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Category: Civil Rights, Human Rights, Legal History, Public, Race & Law
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untitled2Today marks the 50th anniversary of the March for Jobs and Freedom, more commonly known as the March on Washington. Today, in 1963, an estimated 250,000 people—of all ages, races, and creeds—descended on the Lincoln Memorial in a peaceful show of solidarity for full civil rights for African Americans. It was also the day that Martin Luther King, Jr. gave his famous “I Have a Dream Speech.”

There have been a number of interesting pieces presenting the story behind the march, behind the people who organized it, and the people who participated. You can find some of those pieces here, here, here, here, and here (linking to writer and broadcaster Jean Shepherd’s incredibly interesting radio broadcasts about his participation in the march; the popular movie “A Christmas Story” is based on Shepherd’s autobiographical stories). Or just click on today’s Google doodle to find a host of links.

While reading a good number of pieces on the march, I realized that I cannot recall once in my entire 19 years of public schooling (elementary and secondary schools, plus public college and law school) that I ever read or heard about that event and never, not once, did I ever read or hear King’s speech. Read more »

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Don’t Convicted Felons Deserve Second Chances, Too?

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Human Rights, Public
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A group of friends and I email each other links to news articles on a regular basis.  Sometimes the articles are about interesting, funny, or odd developments. The articles that come to mind recently include the Georgetown law student convicted of running a methamphetamine ring; cat-hoarding; rabid beaver attacks; or this article on therapy llamas. (We have a fun group.)  Occasionally we have in-depth back-and-forth discussions about more serious legal topics.  By now, two years removed from law school, we have moved to different cities and states and we all practice in different areas of law, which tends to give us very different perspectives on the various topics that pop up. 

This week, we’ve had a lively debate about Paula Cooper , the Indiana woman released Monday after having been sentenced to die for a crime she committed at fifteen.  The news stories report that she stabbed a 78-year-old woman 33 times with a butcher knife, and was the youngest person in the country sentenced to the death penalty.  For reasons that would take up an entirely separate blog article, since she was sentenced in 1986, it has now been deemed unconstitutional to sentence a child to the death penalty.  Cooper’s sentence was amended to 60 years, and she was released on Monday after having served more than a quarter of a century behind bars.  She will serve time on parole.

The question posed to the group was: would you let this woman out? Read more »

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Israel Reflections 2013–Yad Vashem

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Category: Human Rights, International Law & Diplomacy, Public
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Today’s post is from Brendan Byrne on visiting the Yad Vashem Holocaust Memorial – a regular stop for visitors to Israel including the President this past month.

Yad Vashem is the official memorial to the victims and survivors of the Holocaust that took 6 million lives and left physical and emotional scars on millions more during World War II. The museum itself is located on a tranquil and peaceful mountaintop surrounded by walking paths that allow for reflection after the atrocities recounted within.

To enter the museum everyone must cross a wooden bridge. Once inside I immediately noticed that I was surrounded by 30 foot high concrete walls and instantly recognized that I was not entering the comforts of home; it was something far from home. Rounding the first turn I saw a single long hallway that seems to be brightly lit at the end, but I couldn’t just walk a straight path to that light; the path is blocked by numerous wired fences.

Read more »

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“Illegal” Orphanages – Legality and Legitimacy in Chinese Culture

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Category: Human Rights, International Law & Diplomacy, Poverty & Law, Public
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In January of this year, the Huffington Post reported on a fire that killed six children and one young adult “at an illegally run orphanage in central China”:

“The deaths Friday in Henan province’s Lankao county have spotlighted China’s lack of government-run child services. They are often left to private citizens with few resources and no legal authority. The Lankao government earlier acknowledged that it had turned a blind eye to the illegal orphanage, which cared for abandoned children and young adults. … The deputy county governor said earlier that some departments had failed in supervision and should shoulder responsibility.” Read more »

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Constitutional Adjudication and Social Division – A Judicial Perspective

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Category: Civil Rights, Constitutional Law, Human Rights, Public
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I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights. Read more »

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Opus Prize Winners: Huge Humanitarian Impact from Doing What Is Possible

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Maggy Barankitse says she has made many mistakes. “I hope they will accept me in Heaven,” she said during an “On the Issues with Mike Gousha” program at Eckstein Hall on Thursday.

“If you’re not going, the rest of us are in trouble,” responded Gousha, Marquette Law School’s distinguished fellow in law and public policy.

Gousha’s logic was simple: Who among us measures up to people such as Barankitse? Who can say we’ve done anything in the way of service to people that is even a blip compared to what she has done for tens of thousands of children in Burundi?

You can say the same when comparing our accomplishments to those of Father Richard Frechette, C.P., who launched the St. Luke Foundation that has provided day to day help and education to thousands of children in Haiti. Frechette was the guest at an “On the Issues” session Tuesday.

But who among us can’t learn from the examples of Barankitse and Frechette, who both said during their visits to the Law School that the starting points for what they have accomplished were really quite simple: seeing need, having faith, and putting their hearts and souls into doing what is good and what God wants people to do for others?

What should we learn? What can we do? That we should keep our minds and hearts open to all the people of the world, Frechette said, and do what we can to keep “the banquet of life” open to all. “When you do the right thing, the next right thing will happen,” he said. 

Barankitse and Frechette are each past winners of the Opus Prize, a $1 million award recognizing great accomplishments in faith-based social entrepreneurship. They and six other winners of the prestigious award were on the Marquette campus for Mission Week. All eight, as well as representatives of two other Opus winners, were recognized at the keynote event for the week Thursday evening at the Varsity Theatre.

Barankitse – known as Maggy to the people of Burundi – lived through horrific violence between members of Hutu and Tutsi ethnic groups that left tens of thousands of people dead in recent decades, including a slaughter in her presence of dozens, including members of her family. But, she said, she refused to be broken by what she saw; rather, she became dedicated to a positive, optimistic approach to building lives of children in her African nation, regardless of their ethnic background. Maison Shalom, the organization she founded, now provides multiple services to about 30,000 children, with the goal of rebuilding healthy families. Its work includes a hospital complex serving mothers and children.

Frechette went to Haiti in 1987 to work in an orphanage. He was motivated to take on more and more services for children as he led the rise of the St. Luke Foundation. Its operations now include schools for 8,000 younger children and 1,200 high school age children. The foundation has also launched businesses employing Haitians and helps meet food needs of many. Its programs touch the lives of an estimated 150,000 Haitians each year.

Frechette described conditions in Haiti as terrible on almost every level, and, in general, not getting better. Yet, he pursues his work with love and confidence in the potential and future of the children who are involved. “I don’t see so much the bad part of it,” he said. “I see what’s possible.” Summarizing what St. Luke does, he said, “We raise children, that’s what we do.”

Two unpretentious people who have had so much impact in places on the globe where need can seem overwhelming, impact that started with determination to do what is right and good and helpful. “You go for one thing and you end doing a lot of other things,” Frechette said.

How do we make that resonate in our own lives? What more can we do to help meet the needs of people in our midst as well as those who seem remote from us? How can we use the examples of people such as Barankitse and Frechette to inspire and guide our own paths? If one goal of Mission Week is to put such questions in front of everyone involved at Marquette, consider the two sessions at the Law School successful parts of the campus-wide whole.

Video of the conversation with Father Frechette can be viewed by clicking here. Video of the session with Maggy Barankitse can be viewed by clicking here.

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An American in Beijing: Landmark Domestic Violence Ruling in China

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Category: Feminism, Human Rights, Public
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Last weekend, a Beijing court granted a divorce on grounds of domestic violence, in a case which has garnered widespread attention and debate in China for the past year. In 2011 an American woman, Kim Lee, went public on social media websites (including with graphic photographs) with allegations that her husband, an infamous English teacher by the name of Li Yang (founder of “Crazy English”), was abusive. Her battle for due legal protection and recognition of her plight culminated in the Beijing decision, which granted her a divorce, and issued a three-month protection order against Li Yang – apparently the first time such an order has been granted in Beijing. In addition to acknowledging the domestic violence, the court ordered Li Yang to pay 50,000 RMB [approximately $8000] in compensation, and a further $1.9 million as part of the divorce.

Kim Lee has become a symbolic hero for domestic violence victims in China, and her case has ignited interest and debate about the issue of domestic abuse. Read more »

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Time to Finally Pass the Equal Rights Amendment?

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Category: Civil Rights, Congress & Congressional Power, Constitutional Law, Feminism, Human Rights, Legal History, Public
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Equal-Rights-Amendment-imageIn 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted). 

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women. 

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id. Read more »

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Time for a Serious Conversation about Guns–and Those Who Use Them

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Category: Constitutional Law, Human Rights, Political Processes & Rhetoric, Public
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This picture is of a five-year-old. More specifically, my five-year-old. Energetic and friendly and excited for kindergarten. Now that boy is long past kindergarten. Still energetic and friendly, but now excited for college. In his twelve years of primary and secondary schooling, he never once had to endure a lock-down of his school; never once had to cower under a desk or huddle with other children because someone with a gun lurks nearby, maybe even right in front of him; never had to witness his classmates or his teacher shot and lying bloody in front of him; never had to close his eyes to walk past carnage to exit his school. Maybe he was just lucky.

But no child should have to endure such things. No child. Anywhere.

By the time my sons entered school, mass school shootings were already on the national radar, thanks to the Columbine school shooting in 1999.  And, sadly, mass shootings generally have made regular appearances in their lives since then:  the Westside Middle School shooting in Arkansas, the Beltway sniper attacks, the Amish school shooting, the shooting at a Brookfield hotel where church services were being held, the massacre at Virginia Tech, the shooting of Congresswoman Gabby Giffords and others, including a nine-year-old girl, in Tucson, and just this year alone, the Aurora theatre shootings, the shooting at Oak Creek’s Sikh Temple, the shootings at Texas A&M, the shooting at Azana Salon & Spa in Brookfield, the Portland, Oregon, mall shootings, and now the Sandy Hook School shootings in Connecticut. Read more »

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Artillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

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Category: Human Rights, International Law & Diplomacy, Public
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Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina.  The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995.  The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia.  In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II.  At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area.  Operation Storm came on the heels of the massacre, and was an overwhelming success.  The Serbian forces were devastated.  Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm.  Gotovina went into hiding, but he was apprehended on December 7th, 2005.  On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated.  As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts.  The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.” Read more »

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