Confounded, I asked:  “What if you really want to express your gratitude?”

Fr. Prakash patiently reminded me, “Lisa, gratitude is an attitude.”

Despite this cross-cultural teaching, I now find myself writing about Fr. Prakash unable to refrain from using the word “thank you” to express how grateful I feel when contemplating his selfless dedication to defending the human rights of minorities in his home state of Gujarat, India.

Fr. Prakash heads one of Gujarat’s most vibrant human rights organizations, aptly called ‘Prashant’ which means “all pervasive peace.”   Its mission includes promoting human rights, justice ,and peace to ensure the mandate of the Society of Jesus.    In particular, he crusades for the protection of religious minorities in Gujarat, where among 58 million inhabitants the majority are Hindus, and only 9.1% are Muslim,  .56% are Christian, and 1% are Jain (an ancient Dharmic religion).

MU Students and faculty gathered in Eisenberg Hall last Wednesday, November 10, 2009, to learn more about Fr. Prakash’s work and the issues he confronts.  For example, we learned about a state “conversion law” which requires government permission to change religions; a practice of “encounter killings” where police extrajudicially kill young Muslim detainees while pretending to re-enact a fabricated crime; and state indoctrination in public elementary schools that use textbooks with Nazi propaganda.

Yet, one horrid event symbolizes most potently the grave danger that religious minorities face in India.   The “Gujarat Carnage of 2002” occurred when, according to Human Rights Watch, a mob of Hindus “undertook a three-day retaliatory killing spree leaving hundreds of Muslims dead and tens of thousands homeless and dispossessed, marking the country’s worst religious bloodletting in a decade.”  The attack came as a reaction to rumors that Muslims had bombed a train of Hindu activists, a claim later refuted by a government investigatory commission.  While the state government blamed the event on “spontaneous violence,” human rights groups unearthed evidence that local political leaders played a role in planning and facilitating the event.

As history shows, the truth eventually pervades and the Gujarat government’s ongoing efforts to conceal the truth has met with fierce resistance.   When it tried to ban the prize winning film Parzania, a fictional depiction of the 2002 massacre, the state confronted protests at home and abroad.

Not surprisingly, as a leader in unveiling the truth about religious persecution in Gujarat, Fr. Prakash has become one of the local government’s primary targets.  The government currently seeks to seize his passport, as well as initiate fabricated criminal investigations against him. Yet, Fr. Prakash cannot be dissuaded from his dedication to the most vulnerable people of his state, to educate the world about their plights, and to bring the government to account.

For example, he recently testified before the U.S. Commission on International Religious Freedom, which in August 2009 issued its report on India declaring that “during the 2002 communal riots in Gujarat, India’s National Human Rights Commission found that the Indian government not only failed to prevent the attacks against religious minorities, but that state and local officials aided and participated in the violence.”   Significantly, the United States denied Gujarat Chief Minister Narendra Modi a visa to the United States in 2008 based on his complicity in the religious persecutions.

Justice can be slow, but it always arrives eventually.  Criminal investigations are now underway to clarify the criminal liability of the Gujarat Carnage.  In one ruling regarding bail for a suspected participant in the mob violence, the Gujarat high court found the massacre to be “almost unparalleled in modern history” of India, and crimes that undermine the very foundation of the rule of law. Witnesses also reveal that calls to the government for help, including to Chief Minister Modi, went unheeded.

In light of the horrendous violence against religious minorities in Gujarat, it comes as a sad irony to realize that Mahatma Gandhi spearheaded his non violent movement “Satyagraha” (the force of truth) in Pujarat, which led to the Dandi Salt March and eventually the freedom of India.  It reminds us that human rights protections require constant vigilance from all of us.  As Ghandi himself remarked, “An error does not become truth by reason of multiplied propagation, nor does the truth become an error because nobody sees it.”

Indeed, Fr. Prakash ended his presentation calling upon us to be aware of these human rights violations, and to confront those who use resources to propagate hate in India.  And then, he unceremoniously nodded his head in a gesture of deep gratitude.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

Anyway, if you followed those posts with any interest, or if you are generally interested in the experience of refugees, then you may want to review the recently-released report from The Advocates for Human Rights, entitled A House with Two Rooms: The Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project.  (Confession: as previously disclosed, I worked for the Advocates during and after law school, and I think it’s a terrific organization.)

A House with Two Rooms reports the findings of the Diaspora Project portion of the TRC’s work, which collected information about the experiences of the Liberian diaspora during the Liberian wars, during their flight from Liberia, and in the countries in which they resettled.  Amazon summarizes it this way:

From 1979 to 2003, more than 1.5 million Liberians were forced from their homes to escape civil conflict. Hundreds of thousands became refugees and many eventually made their way to countries of resettlement including the United States. Most of their stories have never been told. This report on the experience of the Liberian diaspora, entitled A House with Two Rooms, documents the experience of human rights abuses and violations of international humanitarian law that forced Liberians to leave the country. It is based on an analysis of more than 1600 statements, fact-finding interviews, and witness testimony at public hearings held in the U.S. The report also tells the story of the “triple trauma” experienced by members of the diaspora during their flight through Liberia and across international borders, while living in refugee camps in West Africa, and in resettlement in the U.S. and U.K.

I reviewed the Executive Summary and some of the interior chapters.  I am a little ashamed that I can’t stand to read much more of it right now, because it reminds me too much of what I heard from Liberian refugees during the period in the late 1990’s when I worked with refugees. The atrocities of the wars in Liberia were beyond what I ever imagined human beings could do to each other, until I heard it for myself. If you care to read a representative story, here is one from the Executive Summary, at pages 10-11.  (Or, just take my word for it that it’s terrible, and skip over the block quote.)

At the initial stages of the war, I moved to Ninth Street in Sinkor, Monrovia… The children were outside cleaning the yard. Suddenly they ran inside and said that they saw armed men coming. Moments later, Taylor’s men busted in. One of them said, “This is the dog I’m looking for.” He told us to come outside. Myself, my ten children, and my wife obeyed. The NPFL [commander] knew me…He had run against me in an election…before the war. He said to me, “You cheated me during the election, but now I am in power. I will teach you a lesson you will never forget.”

He told his NPFL boys to take my eldest daughter into the house. She was thirteen years old. They dragged her inside and dragged me in after her. [The commander] raped my daughter in front of me. My father (my daughter’s grandfather) was still in the house. He rushed at the NPFL men, trying to stop the rape. One of the men – I don’t know his name – shot and killed my [father] right there. [The commander] then brought me and my daughter back outside. He said, “I’m going to show you what I came here for.” He beat the children with the butt of his gun. He made two of my sons, who were seventeen and twenty, drink dirty water with the urine of one of the NPFL men in it. When the twenty year old refused, he shot him in the foot. [The commander] stabbed my other son, who was eighteen, in the elbow with his bayonet.

He then began to beat my wife. He told her to lay on her back and stare at the sun. [The commander] said, “You will eat your husband’s heart very soon.” He took the daughter who had been raped. [The commander] held her and said, “I want you to know how you all will die.” He ordered one of his men to cut off my daughter’s head. She was beheaded in front of our eyes. They dragged me over to lay beside her body. [The commander] said, “You will be the next one.”

Then I heard heavy shooting. ECOMOG was coming. The NPFL scattered. Before [the commander] left, he made a remark. He said, “Anywhere in Liberia I meet you or your family, I will kill you.”

I do not know how human beings like the man who lived through that experience go on with their lives, but thousands of them do, thousands of them right here in the United States.  When I was practicing refugee law and hearing these stories, I was focused on how to help each individual, and didn’t take much time to think of the larger picture of how the refugee and asylum law systems function (or do not).

Since I began teaching refugee law here at Marquette, I became more aware of the strange gulf (strange to me, anyway) between the fields of transitional justice, which, as I understand it, seeks to help societies that are in the process of recovering from or transforming after widespread human rights abuses, and refugee law, which seeks to provide refuge from those fleeing the abuses as they occur.

It is striking that, as far as I know, this Diaspora Project is the first time that a Truth and Reconciliation Commission has sought, methodically and purposefully, on such a large scale, to obtain information from the ones who fled the horrific violence and resettled elsewhere.

It seems to me that such interviewing of refugees should be a standard part of providing for their needs and giving them refuge.  And that it should be done at the time they are fleeing, not (or at least, not solely) years afterwards.  Not only because having their stories heard and believed is part of what they need, for healing, but because the evidence they could provide would be ammunition for investigating and, perhaps, stopping the human rights abuses as they occur, or even preventing them.

If you want to know more about the stories of the incredibly resilient, inspirational Liberian diaspora, a House with Two Rooms is available for purchase on Amazon or from the Advocates by mail.  It is also available for free download (in sections) on the Advocates’ website.

When you live in walking distance from the US-Mexico border, Newsweek points out, “the distinction between the U.S. and Mexico can get blurry—often children will pay visits on the weekend to family members who reside in Mexico and cross the border again Monday morning to go to class.”  Indeed, given recent rates of deportation, it is not at all unlikely that some children have (deported) parents living on one side of the border, while their citizen or permanent resident parents reside in Texas.

The trouble is that some of the students, allegedly, were crossing from Mexico every day to attend class in Texas.   And although public schools in the U.S. are forbidden by the Equal Protection Clause from denying education to children on the basis of their immigration status, schools do, of course, have the legitimate right to verify students’ residency in the district.  As the superintendent of the Del Rio district states, “It’s very simple. If you reside in the district, you can go to school. . . . . Texas has the same residency issues not just with children from Mexico but with children from Louisiana, New Mexico, Arkansas, and Oklahoma.” (An attorney for the Mexican-American Legal Defense Fund asks, ”Why isn’t the school district setting up a roadblock on the east side of town to see if students are coming from an adjacent school district?”)

I read about the controversy on a number of different websites, and you can probably imagine the character of many of the comments.  But one particular exchange played into a question that I have become a little obsessed about recently:  who is an “American”?  Is an “American” identified by legal citizenship?  By something more?  By something different from that altogether?

The exchange began when a young woman who had commented in favor of immigrants’ rights was explaining her family background and her plans for the future; she stated, in part, “I stick up for my people.”  That statement, which highlighted the writer’s sense, apparently, of belonging to a different “people” from the other commenters,  triggered this response:

Who are your people? My people are Americans, all colors, all races, all religions. If Americans are not your people you should be living, working and educating yourself in your own country with your own people.

“Who are your people?”  That question has been on my mind all semester, for a number of different reasons.

First, I wrote a short summary of the Padilla v. Kentucky case for the ABA Supreme Court Preview publication.  In that case, which was argued last week, the United States seeks to deport Jose Padilla, a Vietnam veteran who has lived in the US for more than forty years but who never sought citizenship.  Padilla’s immigration troubles began because, while working as a truck driver, he was caught moving a large amount of marijuana in his truck.  He eventually pled guilty to a drug trafficking charge that counts as an “aggravated felony,” meaning that his Lawful Permanent Resident status would be revoked after his sentence ended, and he would be deported.

Mr. Padilla’s defense to deportation is that he received ineffective assistance of counsel.  He says that during plea negotiations, he specifically asked his attorney whether there would be any immigration consequences to the guilty plea, and his attorney advised him that there would not “since he had been in the country so long.”

On appeal, the United States has abandoned its former position, and now agrees with Padilla that affirmative misadvice about immigration consequences must be ineffective assistance.  The fight in the case is reduced to whether that terrible legal advice prejudiced Padilla’s case, as well as the politically more interesting issue of whether simple failure to provide any advice at all, i.e., non-advice, regarding the immigration consequences of a immigrant’s criminal conviction also constitutes ineffective assistance. It seems likely that Mr. Padilla will win his argument that he received ineffective assistance, provided he can prove that his attorney misadvised him so terribly.  But it remains unclear whether he will avoid deportation.

Which is what leads me to the question.  Isn’t a man who lived here in our country for more than 40 years, who was a lawful permanent resident, who fought in Vietnam on our country’s behalf, who has a wife and children here, one of “our people”?  By what measure is such a man not as American as I am?

We can call what we are doing to Mr. Padilla, “deportation,”*  but it is something different.  We should invent a new word.

The scope of this issue came into even clearer focus for me, when, with a group of law students, I participated in a “know your rights” presentation and initial screening of some detained immigrants on behalf of a nonprofit that works with immigrants.  Before that experience, I knew that there had been an increase in deportation of “criminal aliens” due to the 1996 changes in our immigration laws, as well as later amendments.  It is one thing, however, to know that, and a very different thing to sit across a table and talk with some of the human beings being deported under these laws.

I talked with one man who has lived in the US since he was seven years old, and who seemed to have little to no chance of avoiding deportation.  Another interviewer met one who arrived when he was two. The combination of the expansion of the “aggravated felony” definition (which now encompasses almost all felonies and even some misdemeanors)  and the elimination of most forms of relief from deportation for such individuals means that many lawful permanent residents with criminal convictions are being deported from the United States to places where they have not lived in a long time.  In fact, there must be thousands of people like Mr. Padilla.

I guess you can say that Mr. Padilla, or the man who lived here since he was 7, or the one who came when he was 2, is not an American because he is not a citizen.  But saying so doesn’t make it true.  If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking?  What is the legitimate difference?  What does “deportation” even mean when applied to someone like Mr. Padilla?

A third experience happened the same day and made the situation seem even more bizarre.  One of the immigrants with whom I spoke claimed, rather credibly, to be a US citizen caught up in a terrible mistaken identity problem.   Did you know that in the most recent wave of deportations, the US has deported quite a few citizens, mistakenly?  If you want to read about how something like that can happen, there is an interesting blog post on it here.  The short answer is that it is correlated with the increased use of expedited procedures.

Someone definitely should invent a new word for deportation of citizens.

Writing about Mr. Padilla, and meeting with detained immigrants, and reading the “Who are your people?” comment also led me to reflect on my recent interactions with law students and professors from other parts of the world.  In September I attended the  International Association of Law Schools Conference on Constitutional Law, at American University Washington College of Law.  Law professors from every part of the globe participated in the conference.  At my small-group sessions, and in breaks and social times, I discussed comparative constitutional law with professors from Australia, China, Costa Rica, India, Ireland, Italy, Malaysia, Mexico, the Philippines, South Africa, Zimbabwe, and many more places, too many to name.  I had just finished the Padilla write up at that time, and couldn’t stop talking about it.  It was often difficult to explain, though, to professors from other countries, because they didn’t understand why the government would provide counsel for indigent defendants in criminal proceedings but not for the same aliens in their related deportation proceedings.

That point came up again in my interaction with the Hurtado students who recently visited our law school.  During a conversation with one student, I was once again talking about Padilla (as I said, I can’t shut up about the case), explaining that there is no right to free counsel in the immigration proceedings because deportation is not a “punishment.”  The student gave me a very strange look, and interrupted to ask how it can be said that deportation is not a “punishment” when it is triggered by commission of a crime.  It is a good question.

My personal interactions at the IALS conference and with the Chilean students also left me with a more positive feeling with regard to “who are my people.”  A recognition that people who don’t share my location or my local circumstances or my nationality, but who do share important values, interests, and a way of thinking about the world are also “my people.”

In the end, maybe Peter Spiro’s recent essay  in the ABA’s Spring 2009 Focus on Law Studies publication, “Whither Citizenship,” is right.  He discusses how globalization is “blur[ring] the boundaries that once more distinctly separated the ‘us’ from the ‘them,’” arguing that “[t]he primacy of the state is on its way to obsolescence,” and along with it, the concept of citizenship as it is currently understood, as a relation between individuals and the nation states of which they are citizens. He asserts that this process has begun and is inevitable, and that all people “who value robust liberalism should start training their sights on other institutions, public and private. The challenge, a formidable one, will be to apply the virtues of citizenship in the state in these other arenas.”  I hope that our people are up to the challenge.

I guess I will stop here, as I don’t have any satisfying way to end this discussion.  I will leave you with a picture of some of my people,  schoolkids walking in Del Rio, Texas in September.  (The caption pointed out that it’s not known whether these particular children are Del Rio residents, or not.)

“It is a severe rebuke upon us that God makes us so many allowances and we make so few to our neighbors…” – William Penn 1682

*For the immigration lawyers and professors, I am aware that the equivalent to “deportation” under current law is “removal.”  But I’ve noticed that most people in the news and the blogosphere continue to use the familiar word, “deportation,” so I am doing the same here.

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church’s traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

As a member of a Jesuit law school faculty, I am very proud that the Catholic Church has continued to take such a view on the value of unions and the need to protect historically exploited workers.  I checked with my favorite Jesuit and he tells me this at least the fifth in a series of encyclicals commentating on the importance of labor unions starting with Pope Leo XIII in the late 1800s.

So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.

In Sunday’s  Times, there was an article about a group calling themselves “The Nationalist Socialist Movement – Springfield Unit.”  It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia. 

What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.

There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.

Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”

I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.

But this is the faculty blog so let’s explore a legal point.

Over at PrawfsBlawg, Helen Norton  reprises an argument from one of her papers, suggesting that such programs are structured in a way that makes them a donation program in which the  state may or may or not acknowledge participation. In that case, she says, the “government speech doctrine, i.e., the notion that government’s speech on its own behalf is exempt from first amendment scrutiny, would apply. She may well be right.

But should there be a first amendment limit on government speech? Might there be circumstances (not this case, for sure, I’m just using it as a jumping off point) where the government’s speech overwhelms the speech of others in a way that raises first amendment concerns?

It’s easiest to imagine the possibility in the context of an election. Imagine that the government chooses to conduct a massive public education campaign on, say, the value of a single payer health care system in the midst of an election where the issue is highly salient and divides the parties and presidential candidates. What if massive resources are brought to bear in response to protected speech, e.g., in response to a candidate’s criticism of the administration’s policies with respect to the detention and interrogation of suspected terrorists captured abroad, the government launches a WWII style propaganda campaign?

Of course, such propaganda campaigns existed and are not generally thought to present constitutional problems. The idea is that the remedy for speech that the public does not like is political.

But what if the government uses its unmatched resources to skew the political process?

Cross-posted at Opinio Juris.  (With an interesting response and reply.)

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

Alito and Thomas, dissenting, argued that the majority’s interpretation of the statute “nullifies” (dissenting slip op. at 1) Congress’s effort to abolish the automatic stay in appeals pending deportation.

But the majority emphasizes that the traditional stay is not automatic, or, at least, should not be.  The Petitioner had come close to arguing that appeals in asylum cases should remain almost automatic, pointing  out in brief and argument that, for asylum seekers at least, the irreparable harm that could occur upon deportation–which for many asylum seekers includes torture, imprisonment, perhaps execution–is a heavy factor weighing in favor of granting a stay, and arguing that permitting the alien to remain in the United States pending the appeal causes little or no harm.  The majority disagreed with the latter point, observing,

Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and pro-long[s] a continuing violation of United States law.”

The concurrence makes the point even more strongly, observing, “Under either standard, even the less stringent standard the Court adopts today, courts should not grant stays of removal on a routine basis.” (Concurring slip op. at 2.)

Justice Roberts is a good writer.  My favorite line appears on page 10 in the slip opinion.  In this passage, Justice Roberts is responding to the dissent’s argument that the statutory amendment limiting the availability of “injunctive relief” in these appeals should extend to “stays” because stays are, technically, a form of injunction:

Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day.

I agree very much.

I also want to point out that the Washington Post’s article about the decision, which seems to be getting the most play on the web right now, has a misleading headline, “Court makes it easier to fight deportation.”  As I stated above, and as both the concurrence and the majority observe, under either interpretation, the standard for a stay has become more narrow, making it more difficult to fight deportation since 1996.  Furthermore, the majority of the circuits were already following the interpretation that majority confirmed today, so the majority’s decision works less change than the dissent’s would have.

Did you see this article in the New York Times this morning, about the 300 women protesting a new law that would give men in the Shiite minority community virtually complete control over the lives of their wives?  The NYT describes the law this way:

The law, approved by both houses of Parliament and signed by President Hamid Karzai, applies to the Shiite minority only, essentially giving clerics authority over intimate matters between women and men. Women here and governments and rights groups abroad have protested three parts of the law especially.

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

And the protest itself:

The women who protested Wednesday began their demonstration with what appeared to be a deliberately provocative act. They gathered in front of the School of the Last Prophet, a madrassa run by Ayatollah Asif Mohsini, the country’s most powerful Shiite cleric. He and the scholars around him played an important role in the drafting of the new law.

“We are here to campaign for our rights,” one woman said into a loudspeaker. Then the women held their banners aloft and began to chant.

The reaction was immediate. Hundreds of students from the madrassa, most but not all of them men, poured into the streets to confront the demonstrators.

“Death to the enemies of Islam!” the counterdemonstrators cried, encircling the women. “We want Islamic law!”

The women stared ahead and kept walking.

A phalanx of police, some of them women, held the crowds apart.

As a refugee law professor, dramatic confrontations like this one always lead my thoughts back to the legal definition of “refugee,” and the absence of  ”gender” among the enumerated categories of persecution.  For instance, the U.S. defines “refugee” as a person “unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” I have considered thearguments, legal and practical, against trying to add “gender” to the Refugee Convention’s definition as a separate ground.  But I think I disagree.  For that reason and so many others, it seems like time to revisit the convention and protocol that established the international definition of “refugee.”

Back to the main point, the courage of these Afghani women is inspiring. And the NYT article suggests that the law change might possibly be halted before becoming enforceable.

Cross-posted at feministlawprofs. ]]> http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/feed/ 2 http://law.marquette.edu/facultyblog/2009/04/13/more-thoughts-on-marriage/ http://law.marquette.edu/facultyblog/2009/04/13/more-thoughts-on-marriage/#comments Mon, 13 Apr 2009 18:52:25 +0000 Richard M. Esenberg http://law.marquette.edu/facultyblog/?p=4703 Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

I understand the attraction of those assumptions, but they are not universally shared and do not underlie the arguments against same-sex marriage. This makes it hard — or so it seems to me — for proponents of same-sex marriage to see the point that opponents are making. We are speaking in a way that cuts against the grain of much of postwar legal and political theory.  As a consequence, much of what I have seen in debates on the issue are charges of religious zealotry, bigotry and, as in Varnum, “irrationality.” I congratulate Mr. Samis for trying to steer clear of these.

The other interesting thing in the academic literature on same-sex marriage is the degree of agreement between the right and the left regarding the consequences of same-sex marriage. They believe that it will change marriage profoundly, only differing as to whether this is a good or bad thing. Yet, at the level of popular discourse, proponents of same-sex marriage deny — even claim to be puzzled by — the very results  that theorists of their position expect and desire.

Mr. Samis says that he had hoped (really?) that I would offer “the reasons that same-sex marriage should be banned, but alas it was not to be so . . . .” Of course, he need not be -– probably will not be -– persuaded by those reasons, but my post expressly distinguished between the differences that justify the state’s distinction of same-sex relationships with respect to marriage as a matter of equal protection and those arguments that say it should not redefine marriage as a matter of policy.

The former dispose of Varnum. I am fairly confident that Mr. Samis did not learn in Con Law 2 that, in this context, “all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms” (and I’ll assume that he did not really mean to claim that this is some test for the recognition of constitutional rights or for application of the equal protection guarantee).  Nor do I believe that the analogy to forms of speech that serve different purposes but that, nevertheless, each deserve constitutional protection is apt. There is a difference between defining the express constitutional protection of speech and the application of the equal protection guarantee. The latter does look for similarities between classes, but the heart of the matter is not the similarities but the distinctions. What are the differences between classes and how do they justify differential treatment?

Mr. Samis claims to agree with me on the “purposes” of marriage. I think he does not. What I said is that marriage involves (we hope) the union of two people who love each other and commit to mutual support. Mr. Samis would argue that these are sufficient reasons to extend civil marriage to relationships that exhibit these characteristics. As important as these relationships may be to the people who are in them and as admirable as these people may be, I don’t.

While love and commitment may explain much about why people marry, it does not tell us why the state recognizes civil marriage. Any number of relationships might satisfy the first two requirements, but we don’t allow the participants to marry.

The reason that we allow civil marriage does have to do with channeling potentially procreative relationships into a certain context. It is to communicate the norm that sexual relationships between men and women ought to take place within a marital relationship and that this relationship should be governed by a set of expectations that, whether we acknowledge it or not, are designed and have been developed to facilitate the care of any children that the relationship might create. It assumes — in fact, insists — that children have a right to be – are best off if they are — raised by their biological mothers and fathers.

This is why the charge of “discrimination” on the basis of sexual orientation is unhelpful. While it would certainly be irrational to discriminate on the basis of sexual orientation in, say, hiring law professors, it is not irrational to do so when it comes to marriage. The state acted to encourage certain types of heterosexual relationships (married ones) over others (cohabitation and casual sex) because a man and woman who sleep together might make a baby.

But two men or two women cannot do so. Because of that, the state simply does not have the same reasons to create and encourage a marriage-like status for same-sex couples. It does not have the same interest in structuring their sexual relationships.

I am fully aware of and have spent much time responding to the argument that this cannot be so because we allow men and woman who cannot or will not procreate to marry. That argument is wholly beside the point. For the most part, we cannot know which ones these will turn out to be and it would be intrusive on individual privacy (as well as, in many cases, impossible) to try to find out.

More fundamentally, channeling nonprocreative heterosexual relationships strengthens the norms of conjugal marriage. In fact, if we channeled –- or regarded as equally desirable — heterosexual relationships outside the marital norm whenever a couple could not — or intended not to have — children, we’d actually weaken the marital norm for heterosexual couples, as we have done with no-fault divorce laws and other manifestations of the sexual revolution.

Nor am I much moved by the argument that, having weakened the marriage norm and the value of fathers as fathers in other ways, we are no longer in a position to insist upon it. While it’s true that we no longer criminalize adultery and fornication (and should not), that doesn’t undercut the cultural norm that marriage is trying to preserve. While it’s true that we have weakened the marital norm and weakened fatherhood through liberalized divorce law and more generous attitudes toward out-of-wedlock births and nonmarital relationships, that has come at a cost — one that has been devastating among the poor. Mr. Samis may be right -– unfortunately, he is right — that society has sent the the message that fathers as fathers do not matter. But I would rather rail against the darkness than conclude that we must now live in that long night.

The decline of the marital norm and fatherhood has resulted in enormous human misery. There is nothing in our social policy — not the decline of unions, not free trade, not welfare reform, not the imagined scaling back of government over the past 30 years — that has harmed the poor more. While that doesn’t mean we should or can go back to 1959, it is foolish to ignore the harm and see only the benefits.

There is a much better point for proponents to make here, although they rarely do so. Why, they might say, wouldn’t trying to channel same-sex relationships into marriage help underscore the norm as well? Why might it not help the children (admittedly very few) that are raised by same-sex couples. If gays and lesbians want to commit to the norms that have evolved to restrain and channel heterosexual relationships, why not encourage it?

Here is where we get Burkean. Marriage is a fundamental institution that has been weakened (by no fault of gays and lesbians) at great social cost. The practical problems of the very small number of same-sex couples who would marry (and the almost infinitesimal number of children who would be raised by them –- particularly under circumstances where both partners could have parental rights) can be addressed in other ways. In other words, there is great risk and relatively little need — unless you are compelled by a desire to, as same-sex marriage proponent Andrew Koppelman says, “sanctify” gay and lesbian relationships. To say, incidentally, that this is tantamount to a claim that amounts to no more than “society isn’t ready” strikes me as an extraordinary assertion of hubris and ignores the past fifty years of the social history of marriage.

Nor am I simply alluding so some unknown and unspecified threats. The difficulties with the “no harm” argument are many. The redefinition of marriage would underscore the “close relationship” model of marriage which, as Mary Ann Glendon of Harvard and other scholars have noted, ineluctably weakens the norms of conjugal marriage by loosening the social (if not legal) strictures on individual choice in matters of sexuality and family structure. Remember marriage — at least our traditional conjugal model — absolutely does “endorse” the relationships to which it applies. In fact, it must endorse them because its very purpose is — at least for men and women — to encourage them as opposed to other forms of relationships.

If you don’t believe me (or her), read what the theorists of genderless marriage have to say. They believe that it will advance the close relationship, as opposed to the conjugal, model of marriage. They say that it will change the public meaning of marriage. As one of them noted, “the right wing gets it.” Of course they count this change as a good thing. I do not.

I agree that all children cannot be raised by their biological father and mother. Sometimes the ideal is not possible and we should not let the perfect be the enemy of the good. Divorce is sometimes the best of bad choices and adoption is an attempt to take lemons and make lemonade. But we don’t — at least not yet — marry people with the expectation that they ought to get divorced and thereby impair or eliminate the relationship between a child and her mother or (usually) father. Same-sex marriage necessarily sends a message that it is perfectly fine for children to lack a father or to lack a mother.

Will expanding marriage to same-sex couples have no impact on the norms of marriage itself? Perhaps, but it strikes me as unlikely and, once again, the more sophisticated proponents of same-sex marriage do not believe that. Thus, the Ontario Court of Appeals, in mandating same-sex marriage, expressly demanded that its incidents be changed to accommodate same-sex couples, suggesting that it might require the recognition of (at least) tripartite forms of parental rights since, even if Heather has two daddies, she will also have a mommy. Others have suggested modification of norms and legal rules regarding financial interdependence and the presumption of marriage. Still others have argued that the sexual exclusivity that is a norm of conjugal marriage need not be –- and perhaps should not be –- an expectation of genderless marriage.

This shouldn’t be surprising. To believe otherwise is to believe that sexuality is nongendered in the sense that a relationship between two men or two women is likely to be the same — save for some physical details — than one between a man and a woman. If the norms of marriage developed from a need to bridge the sexual divide between men and women – which is itself a function of the fact that sex makes babies — then why would we expect partners in other forms of relationships to develop — or at least to experience in the same way — the same norms and expectations? There may be much about homosexual relationships that are the same, but it also makes sense to think that there will be much that is different.

Nothing I have said here implicates religion or morality. In fact, it’s probably more rooted in evolutionary biology. To extend marriage to relationships that cannot produce children and whose participants, as a result, are unlikely by evolution or socialization to see them in light of norms and expectations that grow from the nature of relationships that are potentially procreative, seems likely to change them.

It is not an adequate response to say that, well, “I don’t see how your homosexual marriage can affect my heterosexual one.” As Maggie Gallagher writes, that is a sound bite and not a serious thought. Of course, it may not, just as your neighbor’s no-fault divorce did not cause your parents to break up. (Incidentally, Helen Alvare recently wrote an excellent piece in the Stanford Journal of Law & Public Policy demonstrating the way in which arguments for no-fault divorce track those now made for same-sex marriage.)

The consequences that concern me are not an immediate impact on individuals, but a change in cultural understanding — and eventually the law — that would occur over time and in ways that are almost impossible for us to see today. Proponents can shake their heads, praise “progress,” condemn “reaction,” and denounce fear-mongering, but the law of unintended consequences has held up rather well.

If we are concerned by the practical (mostly financial) problems facing same-sex couples that cannot be remedied by private agreement, then I think a better approach would be reciprocal beneficiary schemes.

Relying on the criminal liability theory of “command responsibility,” the prosecutor provided evidence that the hierarchal chain of command led directly to Fujimori.  Notably, the court found that the systematic and general policy of violent and repressive means of fighting a “war against terror” made these crimes rise to the level of “crimes against humanity.”   Lawyers for the victims later pointed out to reporters that international law currently recognizes that perpetrators of this category of crime can never receive an amnesty or pardon.

As I watched the live coverage of the hearing online, I wondered what Fujimori was thinking.  For the entire duration of the sentencing (which lasted all morning), he vigorously scribbled notes on his notepad and did not look up even once.   Did he grasp the gravity of his acts?  Or did he still believe they were justified as part of his campaign against terrorists?  I suspect that when Fujimori stumbled on the Peruvian political scene almost two decades ago, he never could have imagined he would make history in this way.

As an unknown “outsider,” he had promised the electorate change, but went on to dismantle democratic institutions through a self-coup in April 1992 that closed the Peruvian Congress and Constitutional Court.  He used draconian antiterrorist executive decrees as a dragnet to silence dissent, and was often aided by the paramilitary group Colina that carried out some of Peru’s worst massacres. Yet, it would be widespread corruption scandals in 2001 that would cause his government to fall and force Fujimori to flee to Japan, from where he faxed his resignation and settled into a comfortable life.

The Peruvian government began formal proceedings to solicit his extradition, a process that would take another five years.  Fujimori was finally brought to justice after he made a surprise journey to Chile in November 2005 in anticipation of Peru’s national elections.  Immediately, the Peruvian government submitted a new extradition request to Chile, which was granted by the Supreme Court of Chile on September 21, 2007.  The next day, a tired looking Fujimori was delivered to Peru and immediately incarcerated in a holding cell specially-built for him in Lima. On December 10, the Permanent Criminal Chamber of the Peruvian Supreme Court initiated criminal proceedings against the fallen leader.

Having attended the Chilean hearing in August 2007, I felt an immediate impulse that it was imperative that the world stayed tuned into this historic trial.  With the support of the Open Institute Society (the Soros Foundation), I began a trial monitoring project with my colleagues Ana Maria Vidal and Kelly Phenicie that included a bilingual blog (www.fujimoriontrial.org).   We have received emails from people all over the world expressing their appreciation of having a direct source of news and analysis on the trial, but, even so, we question why the trial has not drawn the same type of international attention as other high-profile international criminal trials of former heads of states.     

Today, Peru today showed its capacity for upholding the rule of law, but the current political context poses a constant threat to this commitment to legality.  In fact, I carefully studied the solemn faces of Fujimori’s children who sat behind him, separated by a glass panel.  His daughter Keiko is a Peruvian senator and now ranks as the number one candidate for the 2011 elections.  She has already promised to pardon her father if elected.  After the hearing, she told the reporters that the final judgement was filled with “hate and vengeance” and then took to the streets with a megaphone screaming to the protesting crowd that they would not stop until her father was freed.  Earlier, police were called in to restrain the pro-Fujimoristas congregating and protesting outside the courtroom.

While those supporting Fujimori express anger, victims sigh in relief.  Holding Fujimori accountable holds great symbolic purchase for the thousands of victims who suffered under his rule. I watched Gisela Ortiz stand outside the courtroom and publicly declare that justice had finally reigned supreme.  The importance, she added, is to retain the memory of the deceased.   Ortiz’s brother had been one of the eight students “disappeared” in the Cantuta University massacre, and since then she has crusaded for justice, becoming one of the leaders of Peru’s grassroots human rights movement.   She even brought the Cantuta case to the Inter-American Court of Human Rights, resulting in a final judgment in 2006 ordering Peru to investigate Fujimori’s role in the massacre.   

Even though Fujimori declared that he will appeal, the judgment offers a definitive condemnation of Fujimori’s regime to the national and international community.  In particular, it stands for the principle that human rights violations cannot be considered just collateral damage in wars on terrorism, but rather are punishable criminal acts.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

Another personal experience was with a particular couple.  Before my wife Tara and I were married, we were acquainted with another unmarried couple.  They were middle aged; one had chronic health issues.  They had been together for many years and took good care of each other.  It was obvious in everything they did that they were devoted to each other; that they were in love.  They were also good friends to us.

Any successful relationship between two people living out their love to each other is a good example to all.  It didn’t matter that our friends were unmarried, and it didn’t matter that they were two men.  We were unmarried by choice, still sorting through the implications of marriage.  Our friends were unmarried too, but not by choice.  Their commitment to each other was certain.  Day by day they lived out the vows they weren’t permitted to give legally—“for better or for worse, till death do us part.”  In this they did far better than many ‘traditional’ couples.  If they were guilty of a sin, it was by no means the worst: the sin of unregulated love.

Rather than harm our relationship, our friends’ good example, like those of our parents, gave us the confidence to make that lasting commitment to each other too.  Tara and I did marry—almost 22 years ago.  In our marriage, money, career, children, illness, Law School, these have challenged us.  Whom our neighbors married—or even if they were married—has never been a concern. 

So, after some 30 years of acquaintance with persons I knew to be gay or lesbian, my conclusion is “what IS the big deal?”  I try to understand the arguments for prohibiting same-sex marriages, but to me, they just don’t hold water. 

·         Marriage is for procreation.  Once maybe, but not for a long time.  Since before the Constitution, marriages between people who cannot or will not have children were considered just as legitimate as those resulting in a pack of children.  (I grew up in one of those packs.)

·         Marriage is the cornerstone of society, culture, civilization.  No argument there, but that does not preclude same-sex marriages from contributing to the stability of our culture.

·         Marriage is traditionally between a man and a woman only.  Well, not really.  But, setting polygamy aside, is it legitimate to deny personal liberties on the basis of tradition alone?  Adherence to tradition is voluntary, but the imposition of tradition is oppressive.  

·         Same-sex marriage threatens family values.   Which values are those?  Marital fidelity?  Nope.  Raising your children to be good persons?  Nope.  Keeping your family healthy and safe?  Nope.  Which one did I miss?

·         A majority of Americans oppose same-sex marriage.  I suppose so.  I know a majority opposed racial equality too.  And inter-racial marriage.  At one time a majority opposed abolitionism and enfranchising women and Catholic Presidents.  Fortunately our framers understood that individual rights (such as equal protection) are not subject to the fickle will of the majority.

·         The Framers of our Constitution didn’t intend to legalize same-sex marriage.  Probably true.  They also probably didn’t intend to legalize semi-automatic fire-arms, political action committees, NATO, law school blogs, Social Security, or Medicare. And they probably didn’t realize that sexual orientation, left-handedness, and many other character attributes are not choices, but characteristics imposed on people by both nature and nurture.  In any event, why do we suppose that the Framers intended our evaluation of this problem be cabined by their evaluations?  Unlike many modern Americans, the Enlightenment generation who founded our Nation had a deep faith in progress and intellectual development. They honored the traditions that served them well, and spurned the rest.  If they thought picking and choosing acceptable, why can’t we?

So, needless to say, I was gladdened to see that the Supreme Court of Iowa unanimously ruled on Friday that a statute prohibiting same-sex marriage violates the Iowa Constitution.

Critics have not been quiet, of course.  “While I respect an individual’s right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.”   (RNC Chairman Michael Steele)  Government should not tell you how to run your business, but it should be able to tell you who you should marry?  Why?

Rep. Steve King (R-IA)  condemned the decision, saying Iowa may become a “gay marriage Mecca.” In this depressed economy, when Iowans see the kind of money that people spend on marriages, they may start advertizing their new marital opportunities.

“It’s, quite frankly, a disaster.”  (Brian English, spokesman for the Iowa Family Policy Center).  This is an odd disaster: no one injured, no property damage, no harm of any kind.   This is the kind of disaster we need more of.

I am sure there are other rationales for prohibiting same-sex marriage, but they all seem to be different versions of arguments from tradition, or from religious practices, or from personal philosophies about law or culture.  Some may appear persuasive—until you think of the good people who are relegated to second-class citizenship because of tradition, state-sanctioned religious views, or personal philosophies.  The bottom line is that if my neighbors were two married men, it would not affect my marriage at all.  If they had a dog that barked a lot, that would matter much, much more.

As I listened to Obama on NPR, I noted how he referred to many of the same concepts and issues I teach in “Comparative Study of Transitional Justice.”  This course exposes students to different case studies of how countries have tackled the arduous task of transitioning from conflict and repression to peace and stability.  In particular, we have discussed the use of truth commissions and criminal trials as mechanisms used by nations like Peru, Chile, and South Africa, among others, to address past legacies of human rights violations. Often these measures seek to promote both reconciliation and the rule of law.

The course requires students to journal on their reactions to these topics.  Not even a month into the process, 3L Nick Heitman challenged the usefulness of goals like accountability, truth, social reconciliation, victim reconciliation, victim recognition, and compensation if a country ignores institutional reform.   He wrote,

I argue this point because the atrocities of the past government cannot be taken back; all that can be done is preventing them from happening again.  Institutional reform containing a system of checks and balances is the only way that a government can be prevented from committing these horrible acts in the future. Only reforming the institutions of the government can create the economic, social, and political stability that is needed to ensure long-term success of democracy.

Mr. Heitman’s observations gained credence when two guest speakers spoke about their respective work on the rule of law in Afghanistan and Iraq.   Specifically, on March 2^, we heard from Michael Tobin, a colonel in the Wisconsin Army National Guard who worked as a Judge Advocate and Rule of Law Officer for Combined Forces Command in Afghanistan.  Then on March 26, we listened to Matthias Onderak (MULS Class of 2000) who as an Assistant U.S. Attorney in the Southern District of Indiana served this past year with the U.S. Justice Department’s Rule of Law Program in Iraq.   Both speakers offered students a first-hand account of the significant challenges of building the rule of law from the bottom-up in worn-torn societies.

Mr. Tobin spoke of working with the handful of brave members of the legal profession who had chosen not to flee their country during the Taliban’s rule.   Without courthouses, judges often travel from one village to another in the “circuit court” fashion of our own early federal justice system.   Afghan lawyers struggle to reconcile the religious Sharia law with common civil law in order to offer Afghanis a fair system of justice that upholds human rights.   Mr. Tobin also shared PowerPoint pictures of a vast and arid land spotted by nomad people and roaming groups of orphaned children.  He casually spoke of bullets flying by his head while he visited remote villages.

Johnathan Cattey who is a 2L commented on Mr. Tobin’s talk,

It reminded me that sometimes the classroom analysis and theory of transitional justice/rule of law is very removed from the actually challenges that are faced in many countries such as Afghanistan. Aside from attempting to establish some stability in the government and legal system of the country, Mr. Tobin also had to worry about surviving. It must be quite difficult to keep focused on the task at hand, when your physical safety is being constantly threatened or at least questioned.

Classmate Alyssa Dowse (2L) focused on Mr. Tobin’s sobering account of one of the greatest challenges to rebuilding a war-torn nation:  interpersonal conflicts and logistical mismanagement that gets in the way of “synchronization.”  She writes,

For these reasons, it appears that regardless of how different groups believe a country should be rebuilt, it is necessary that all parties are open to each others’ views and create a plan that encompasses all interests and goals.  If one party — the controlling military troops — just wants to move on, it may be difficult for the other parties to want to communicate and create a common plan.

Likewise, visitor Mr. Onderak shared the practical challenges to building the rule of law in Iraq.  As a civil servant, he lived in a tiny trailer without running water or windows.  He left the barracks only with 48 hours notice to the military, and was then accompanied by eight armed soldiers and carried his own pistol and wore armor.    Admirably, Mr. Onderak left his wife and three children for a year as what he perceived as his duty to serve his country and also to give back to the Iraqis.

Mr. Onderak realized that much of the success of creating local buy-in to institutional reform depended on slowly cultivating a culture that valued the rule of law.  Astutely, he spent his first month just listening and asking questions to orient himself to the local system and culture.  His approach was then comprised of much more than rewriting laws and training lawyers.  Rather, he worked creatively to help internalize a respect for law.

For example, he questioned the possibility of cultivating respect for the rule of law if judges worked in dilapidated make-shift courthouses whose walls could be kicked in. Thus, he lobbied the Iraqi government to invest $250 million (an unexpected boom in the local budget came with rising oil prices) for the physical reconstruction of the courthouses.  At the same time, he recognized that the public needed to believe in the administrators of justice.  Consequently, he worked with the media to profile the success of local criminal trials to convey that law breakers would be held accountable and that judges would follow fair procedure (for example not accepting coerced confessions as evidence).

Mr. Onderak focused on raising the public’s esteem for the local judges, whom he called “the bravest people” he knew, by assuring that the public noticed when they were visited by diplomats.   This simple strategy seemed to raise their prestige as evidenced by an increased interest of the government in the judiciary.  Mr. Onderak also recognized that mistrust of the security forces directly undermined building the rule of law.  So he orchestrated visits to local schools by Iraqi police forces to chip away at this distrust through opportunities for face-to-face interaction.   The program made the police feel like heroes, perhaps exemplified most by the fact that they began to visit schools on their own and placed photos of the events on their office walls.

Yet, understanding that such gestures would not go to the core of changing ingrained habits, Mr. Onderak also focused on providing training to all law enforcement actors in order to begin strengthening their understanding of rule of law principles.

Seemingly impressed with Mr. Onderak’s heroic work, 2L Nate Dineen wrote that

he made a very clear point to illustrate that it was important to make sure that the Iraqi people bought into the idea of a society with rule of law. . . . How can this possibly occur if a society is either not familiar with a system or does not have faith in it?  Onderak stated that the judiciary in Karbala was the strength of the rule of law in the region. . . .Through his actions it must have elucidated that he truly cared to see improvements in Karbala’s rule of law.  From the lobbying to build new courthouses to the desire to elevate the status of the judges, the judiciary and society must have seen the commitment, if not from one man, but from a nation.

Both Mr. Tobin and Mr. Onderak helped to bring the world to the MULS classroom by blowing life into the concepts and experiences we have been learning about.  Most importantly, they revealed that assuring lasting peace requires more than just military intervention, but perhaps more importantly, also necessitates creating the cultural norms to support rule of law reform.

One of our alums who attended, Evelyn Ang, sent me this clip in light of what we had talked about regarding the impact of changing media. Truly an amazing video! Another alum, Amy Koltz, noted, “I found the speakers engaging and the presentations thought-provoking — I’m amazed at the group of presenters you were able to pull together and bring to Marquette.”  She also provided a link to this article from Haaretz on media coverage of Israel and noted that it could have been a presentation in the conference. Our own program manager and conference planner, Natalie Fleury, heard this story on NPR Monday morning about Al Qaida’s training manual on the Internet, directly linking to Gabriel Weimann’s talk on Saturday.

And, from 2L part-time law student (and full-time veterinarian) Marty Greer, came this summary of the conference for those who missed it:

The presenters were from all over the United States and the world: Israel, Belgium, Italy, California, Missouri, Pennsylvania, Massachusetts, and Wisconsin. Their backgrounds included journalism, academia, law, and conflict resolution. To say it was a rich and diverse experience sounds too trite for what happened there. These sad and overused terms cannot begin to describe the energy in the room. It was one part educational experience, one part idea exchange, and one part light bulbs going on over the attendees’ and presenters’ heads. Each of the presenters introduced new and exciting concepts – new even to the people heavily steeped in these areas. For the scholars, it was easy to see new ideas coming together and evolving into new research and a new paper. For the journalists, they developed a new appreciation of how their work can aid in reducing and resolving conflict. For the attorneys and others involved in the practice of conflict resolution, this was a great source of theoretical and hands-on experience that could be applied in the field. For those with short attention spans, each presentation was short, concise, and to the point. This allowed the opportunity for many viewpoints to be presented and plenty of time for the attendees and fellow presenters to delve into the topics they were most intrigued by. All in all, this was a unique and valuable experience, where we were allowed to rub shoulders with the leaders in these fields.

In future blogs, I will link to the webcasts and slideshow when they become available, and to the abstracts for our articles as they arrive.  My thanks to all our speakers and our great planning team here for a terrific conference.

Cross posted at Indisputably.

In addition to several distinguished law professors, the inter-disciplinary and international panelists will include:

• Professor Eytan Gilboa, Director, Center for International Communication, Bar-Ilan University, and Visiting Professor of Public Diplomacy at the University of Southern California
• Professor Martin Euwema, Department of Psychology, University of Leuven
• Frediano Finucci, Late Night News Chief, Ufficio Centrale del telegiornale La7 Televisioni Spa Telecomitaliamedia
• Andrew Lee, University of Beijing
• Professor Alain Verbeke, Professor of Law, Universities of Leuven and Tilburg; Visiting Professor, Harvard Law School
• Professor Doug McLeod, UW-Madison School of Journalism & Mass Communication
• Professor Gordon Mitchell, Professor of Communication, University of Pittsburgh; Deputy Director, Ridgway Center for International Security Studies
• Professor Gabriel Weimann, Department of Communications, Haifa University
• Indira Lakshmanan, Journalist, Bloomberg News

You can find more information about the Conference on our website, and I will be blogging more about what we learned next week after the Conference.

Last summer, among much hand-wringing that the indictment would only make it more difficult for peace to be negotiated, Judge Richard Goldstone wrote a top-notch op-ed for the New York Times explaining the fallacy of that concern. Goldstone, as the former prosecutor for Rwanda and Yugoslavia, understands this balance between peace and justice quite well. As Goldstone notes, the peace process in Darfur is hardly working as it is.

In the meantime, the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum. In 1999, after the International Criminal Tribunal for the Former Yugoslovia issued its arrest warrant for President Milosevic, an opposition group called Otpor turned it into a political weapon with the slogan, “He is finished.” Mr. Milosevic lost the elections in 2000. Although other factors contributed to his fall, including lost wars and corruption, the indictments played their part by demonstrating his isolation.

In Sudan’s 2009 elections, some citizens may rally behind their president. Others may not. In the story of the emperor’s new clothes, a little boy is the only one who has the innocence to point out that the emperor is naked. The arrest warrants for President Bashir reveal to the world what type of regime holds power in Khartoum. They should also push the Security Council to apply real pressure on the Sudanese government. The council and its member states should make President Bashir’s government an international pariah, imposing sanctions against its leaders and, most important, Sudan’s oil exports, which have so effectively insulated the regime. The prosecutor’s message might make some people uncomfortable, but that does not mean we should shoot the messenger. This crisis should galvanize the Security Council to take serious action.

The Security Council heeded Judge Goldstone’s call and supported the ICC. Last week the viewpoints of two religious figures opened the debate again about peace versus justice. Franklin Graham, in his NYT op-ed entitled “Put Peace Before Justice,” argued that arresting Bashir would just create more chaos. As he says, “justice without peace would be a hollow victory.” On the other hand, and on the same page, Desmond Tutu argued that African leaders should support the International Criminal Court in its work. I, for one, find it hard to aruge with one of the greatest living symbols of peace and justice.

Darfur presents such a hard choice because we can’t see the light at the end of the tunnel. Will the indictment actually help the people of Darfur? Could the situation get much worse? Is this just to make us (the West) feel better? It will be much easier to write the lessons of Darfur and this indictment twenty years from now. Right now, we cross our fingers and hope.

Cross posted at Indisputably.

I should probably preface the rest of this long post by explaining that the article Vintee sent me was especially interesting to me because I worked with many Liberians during and just after law school, at Minnesota Advocates for Human Rights, now called The Advocates for Human Rights.  Most of my work for that organization involved interviewing prospective asylum-seekers, to assess their credibility and the strength of their claims for asylum.  My work there happened from late 1996 through early 1999, and many of our clients were Liberians.  Minnesota has a relatively large population of Liberians.  (You may want to check out the Minnesota Star-Tribune’s really nice website about Liberians in Minnesota.)

Anyway, as Vintee pointed out, the situation of these Liberians is “pretty relevant to some of our current readings” in my asylum law seminar. Indeed, the situation of the Liberians facing possible deportation later this year illustrates two of the most important ideas in the course:  (1) the legal definition of “refugee” does not include people fleeing from generalized civil war conditions, and (2) offering “temporary” humanitarian protection in place of permanent refugee status to such individuals is problematic, because countries experiencing civil war do not become stable very quickly, and human beings build new lives in the meantime.

To get asylum in the United States, you must prove that you meet the legal definition of a “refugee,” that is, you are fleeing from persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”  That is why people fleeing from generalized conditions that threaten human life, such as civil war, fall outside of the legal definition of “refugee”: the persecution they fear is not “on account of” one of the five protected grounds.

Thus, while many Liberians I worked with were “refugees” within this legal definition because they feared being targeted due to their political or family relationships, or their ethnic background, many others were not, because they could not establish that they would be targeted on account of one of the special “protected grounds.”  It was difficult to explain to the latter group that they were not “refugees.”  At the time, I was therefore very glad that the United States had determined to grant Liberians who arrived during certain designated periods a “temporary protected status,” or TPS. At least there was some protection to offer most Liberians we interviewed.  

Now, though, ten, eleven years later, thinking of people who have been establishing lives here, now facing the prospect of being forced to return to Liberia, I wish that at that time I had worried more about the fact that for so many of them, their protected status was only “temporary,” at least in name. 

How do we reconcile the fact that we welcomed Liberians here for five, ten, fifteen or more years, with the word “temporary” we attached to their official legal status?  Proponents of the deportations have claimed that allowing Liberians to stay “makes a mockery of the concept of short-term temporary humanitarian protection,” but any such mockery happened years ago, as protection was extended, again and again, with the label “temporary” still attached.  That dry, legalistic phrase, “extending TPS,” had the real life result of allowing human beings to build lives here.  Thousands of Liberians made their homes here in the United States for years and years in such a “temporary” status.  And thank God for that.  It allowed them to feel safe, to forget the horrors many of them had experienced, to build new lives.  Find jobs, buy houses, start businesses, have children. Become members of their communities.  Tearing those human beings from their lives here cannot change the fact that the lives we allowed them to build here were not “temporary.”

To me, it seemed disingenuous from the start to label the protection we were granting Liberians “temporary.” It should have been clear that such horrific civil strife as was taking place in Liberia from 1989 to 1996 would take years to stabilize. Indeed, while things are much improved there now, and while the Truth and Reconciliation Commission may provide a path to peace and stability, the country is hardly prospering, with an unemployment rate of a “staggering eighty-five percent,” according to the UN’s World Food Programme.  The Liberian government itself opposes the deportations, fearing a “destabilizing effect on the country’s fledgling economic and social structures.”  

I hope that many members of the Liberian diaspora are able to repatriate and help rebuild their homeland. Liberia needs them.  But not all of them can or should do so.  Having invited these human beings to weave themselves into the fabric of our communities, for years, even decades, we should not force them to leave now.  Not to mention the fact that many of them have raised children here, children who have no memory of Liberia, perhaps never even set foot in that country.

Beyond the fundamental inhumanity of tearing people from their communities here, the prospect of our country forcibly deporting Liberians is particularly repugnant, to me at least, given the United States’ historical relationship with, and special responsibilities toward, Liberia.  As the Library of Congress general resources portal on Liberia states,

Liberia was settled by freed American slaves in 1821 and became an independent republic in 1847. Americo-Liberians, descendants of the freed slaves, dominated the country until 1980, when Sgt. Samuel Doe led a violent coup that led to the killing of President William Tolbert. By a fraudulent election, in 1985, Doe became Liberia’s first indigenous president. 

That brief summary glosses over the many other ways in which United States policy and actions from before the founding of that nation and up until the present day have affected Liberia’s political and economic development. Any reader of the history of the relationship between the United States and Liberia must acknowledge that the United States bears significant responsibility for the ethnic and political tensions that drove Liberia to war and created the forced migration crisis in that country.  In view of our historical relationship with Liberia, we were right to offer protection to all of fleeing the Liberians who sought safety here.  Having allowed them to make homes here for years, we should offer them a path to permanent residency.  

In December, a number of congressional representatives, including Milwaukee’s Gwen Moore, wrote to Bush and Obama in December, seeking an extension of the Liberians’ status here.  In January, a large number of NGOs (including The Advocates for Human Rights, the National Immigrant Justice Center, and the Catholic Legal Immigration Network, Inc.) renewed that request. The Advocates’ website has more information about efforts to prevent the deportations, and even a postcard you could send to the President about the issue, were you so inclined.  I plan to do so myself.

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law.  The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that ”no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8  U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country.  If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

Prior to the 1996 overhaul of the immigration statutes, an immigrant appealing from a deportation order received an automatic stay of deportation pending appeal.  The old code also made it impossible for the immigrant to continue his or her appeal after deportation; deportation ended the case.  

The 1996 amendments eliminated the automatic stay, but also eliminated the provision that ended an appeal after deportation, providing instead that an alien may continue his appeal after deportation.  The amendments also added various limitations on judicial review, including the above-quoted portion of section 1252(f)(2).  

Since then, the majority of circuit courts have held that sec. 1252(f)(2) does not apply to stays pending appeal, reasoning that the verb “enjoin” means something distinct from “stay,” especially in view of the fact that applying the “clear and convincing evidence” standard probably means that only a citizen or someone else with a clear legal right to remain in the country would be able to obtain a stay.  As Judge Easterbrook observed in the Seventh Circuit’s opinion siding with the majority, Hor v. Gonzalez, “an alien . . . who contends only that the immigration judge’s conclusion is unsupported by substantial evidence will be unable to demonstrate ‘by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law’ and thus would have no hope of a stay if §1252(f)(2) applies to requests for stays.”  But some courts have held the opposite.

There were not many surprises in the questions asked in the argument yesterday.  At the outset, Chief Justice Roberts was focused on the practical impact of ruling in favor of the Petitioner–i.e., the prospect that applying the ordinary stay standard to stays of removal would mean that almost all such stays would be granted, which seems inconsistent with Congress’s elimination of the automatic stay. Justice Scalia and some other justices also pushed the Petitioner’s attorney, Lindsay Harrison, on the question of to what the limitation on injunctions applies, if not stays pending appeal.  There would be few reasons for an alien to seek to enjoin removal except through the ordinary appeal process.  

Chief Justice Roberts and Justice Stevens also pressed Harrison on the question of whether the difference in standards really makes such a difference; in other words, in deciding whether to grant a stay of removal pending appeal, isn’t the court always deciding whether the alien might be entitled by law to stay? But the responses to those questions, as well as back-and-forth with the United States’ attorney in the following part of the argument, made clear that there is a real difference, because under the “clear and convincing evidence” standard, it seems that balancing of the equities is irrelevant.  In other words, under that standard, it seems that the severity of the harm the alien fears upon removal coul not tip the balance in favor of the stay if there alien’s challenge is to the findings of fact, at least not unless the evidence is “clear and convincing” in favor of the alien.  

I realize that this discussion is a little fuzzy, but as noted during the argument, that’s part of the problem with this statute–it’s difficult to understand what Congress meant when it stated that a trial standard, “clear and convincing evidence,” should apply in the context of judicial review of another court’s decision.

Perhaps the most important part of the argument, in attempting to predict the Court’s ruling, was the discussion of whether, in the view of the Deputy Solicitor General, the Supreme Court had violated the law by issuing a stay in Mr. Nken’s case pending decision on his petition for certiorari.  At one point, Deputy Solicitor General Edwin Kneedler asserted that “1252(f)(2) allows a court to take the time necessary to rule meaningfully on the stay application. We do not believe Congress intended to divest the court of the ability to rule on the merits.”  He also stated that under the Hobbs Act, despite section 1252(f)(2), there remains “a provision for a temporary — for a court to issue a temporary stay upon a showing of irreparable injury to allow the status quo to be maintained pending the court’s ruling on the interlocutory injunction.”  

This position seemed to take a lot of the wind out of the Respondent’s interpretation, because, as Justice Souter asked, if such authority survives despite section 1252(f)(2), “[t]hen why doesn’t that provide the broader authority under (b)(3)(B) stay provision that your friends on the other side are arguing for?”  Thus, the government’s concession that the statutory framework did not strip the court’s ability to preserve the status quo temporarily while it rules on the availability of the stay seems to have undermined its claim that the court nevertheless lacks the power to preserve the status quo during the remainder of the appeal.

The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?

Others have asked whether there is an implicit threat in the creation of a map like this, and it does seem that those who created it must have contemplated, if they did not intend,  that it be used to place pressure on supporters of Prop 8. Of course, that doesn’t mean violence or even economic reprisal. It could be used to create a march route or even to facilitate social ostracization.

I appreciate that many – who see support for 8 as a form of hatred and support for a profound injustice – won’t care. Whatever happens to donors (short of violence, for most) is well deserved.

Legal questions might revolve around whether this type of speech targeted at donors to a political campaign can or should be banned (I think not) or whether campaign disclosure laws ought to or even must be modified. Eugene Volokh points out that the state may not compel the disclosure of contributors “to a minor political party that can show a ‘reasonable probability’ that the compelled disclosures will subject those identified to ‘threats, harassment, or reprisals.’”

It seems unlikely that this rule would apply to supporters of 8, which did, after all, win. I don’t think that  supporters of 8 could make the requisite showing, but a series of interesting questions present themselves. 

Does a constitutionally significant likelihood of threats and reprisals turn on whether the threatened party is associated with a political minority? Even if it does, what is the relevant community for the purposes of ascertaining minority status. Supporters of 8 who live in San Francisco are certainly a political minority — even a despised one — in that city. What of those who work in an industry — say academia or the arts — in which opposition to 8 is strong?

But beyond these legal questions, I wonder if this type of strategy is smart? Can you really convince the larger society to expand its notions of tolerance by being intolerant of those who resist? Supporters of SSM often draw analogies to the civil rights movement. We do not tolerate racism. Why should we tolerate what they see as similar attitudes towards gays and lesbians?

The political problem, it seems to me, is that there is nothing like a consensus that the analogy is apt, particularly when the issue is marriage (for which many people seem to believe gender and sexual orientation is relevant) and not the denial of other civil rights on the basis of sexual orientation. I wonder, in particular, if the embrace of the civil rights analogy has cost supporters of same sex marriage support in the African-American community, where I suspect there are many people who do not believe that gays and lesbians have been subject to the same type of oppression as blacks.

Supporters of same-sex marriage would argue that they are engaged in an attempt to change attitudes and, over the long run, the civil rights theme will work. Maybe so. But boycotts and other attempts to ostracize those that have simply supported a particular view of marriage (as opposed to discriminating against gays and lesbians in other ways that would provoke public outrage) do provide the supporters of 8 and similar measures with, whether or not you buy it, their own civil rights narrative.

Cross posted at PrawfsBlawg.

I was a bit startled the first time I heard about U.S. soldiers seeking refugee status in other countries to avoid serving, or continuing their service, in the Iraq War.  There have been a number of such cases in Canada, and at least one in Germany.  (And I should note before continuing that I’m not sure that “humanitarian and compassionate grounds” are quite the same as asylum; still, the remainder of this post focuses on these soldiers’ ability to establish asylum.)

Under U.S. law, the basic definition of a “refugee” is someone who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and Canada’s definition is similar.  Generally speaking, as students in my refugee law seminar learn, volunteer soldiers who desert their posts do not qualify as “refugees” under this definition.

Volunteer soldiers who fear prosecution for deserting have difficulty proving two important elements of the claim.  First, that they face “persecution,” rather than prosecution. Second, even if being tried and imprisoned for desertion is “persecution,” that the trial and imprisonment is “on account of” any of the forbidden grounds.  Having volunteered to become soldiers, it is difficult for them to establish genuine religious or political objections to service.  Furthermore, it is difficult to establish that the government targets them for punishment due to any of their beliefs or characteristics; rather, they are targeted along with anyone else who refuses to serve in the army as promised.

But the question of exactly what sort of service the soldiers promised to provide is the window through which some U.S. soldiers have tried to establish refugee status, arguing that their service in Iraq went beyond what they had volunteered for.  In July, a Canadian appeals court ruled that “dodging orders that are ‘contrary to the basic rules or norms of human conduct’ is enough grounds to apply for refugee protection. ‘Military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve. . . . ‘”  

In other words, if the soldiers could demonstrate that what they were being required to do was not what they agreed to do, but something terrible and against the law, i.e., “contrary to the basic rules or norms of human conduct,” then, this court held, they could perhaps demonstrate that their punishment was on a forbidden ground.

Even were that the case, however, circling back around to the first issue I raised, it seems unlikely that trial and imprisonment for desertion in the United States will be deemed severe enough to rise to the level of “persecution.”  This BBC article states that the only U.S. soldier that Canada has deported so far was sentenced to 15 months in prison when he returned here.  In the end, whether to deem a punishment “persecution” or “prosecution” is a judgment reflecting the decision-maker’s impression of societal values, and it is difficult to imagine a Canadian decision-maker determining that a volunteer soldier’s 15-months sentence for desertion was so unfairly punitive as to rise to the level of persecution.

From the CNN report:

Last week’s raids shut Ebadi’s Center for the Defense of Human Rights and another charity that aids land mine victims. A spokesman for Iran’s Foreign Ministry told the state news agency IRNA that the organizations did not have legal work permits.

“There is now grave danger to both Dr. Ebadi, who fears an imminent arrest, and to her many human rights clients, whose basic human rights and lawyer/client privileges have been compromised by this seizure of their confidential files,” Williams wrote. “Dr. Ebadi is deeply concerned that the lives of many dozens of people are now in jeopardy as a result of yesterday’s illegal raid.”