Attend Charlotte City Council Meeting on March 2nd to Support the LGBTQ Community by Standing-Up against Discrimination

February 26, 2015

CALL TO ACTION:

When: March 2, 2015 at 4 p.m.

Where: Charlotte-Mecklenburg Government Center, 600 East Fourth Street

What to Do: Wear blue to show your support for these critical non-discrimination protections

Charlotte has once again found itself getting national news coverage for leading the way in the fight for equality in the LGTBQ community. On March 2, 2015, the City Council will vote on a proposed ordinance that would make it punishable for the city’s taxicabs, limousine providers and other “For Hire” means of transportation to discriminate against the LGTBQ community. The ordinance will also affect contractors holding city jobs by prohibiting discrimination against sub-contractors who identify as part of LBGTQ community. Other proposed parts of the ordinance include not allowing businesses to refuse service to anyone based on their sexual orientation, gender identity or sexual expression.[1]

Who could possibly be against people being treated equally?

Franklin Graham, son of the famed southern preacher Billy Graham, is leading the opposition to Charlotte’s proposed non-discrimination policy. Locally, Graham has partnered with the Benham Brothers, who are the sons of anti-gay street preacher Flip Benham. The Benham Brothers found themselves under the spotlight last year when HGTV cancelled their upcoming do-it-yourself show because of their views on homosexuality. All three politically right wing and religiously conservative men have joined forces with NC Values Coalition, the same group that failed in their efforts to ban gay marriage in North Carolina.

This force of oppression has been organizing their fan bases, church groups, and anyone who listens to write letters to the members of Charlotte City Council and the Editor of the Charlotte Observer. The group is also organizing followers to attend the City Council Meeting on March 2nd to voice their opposition to people being treating fairly under the law.

And That is Where You Come In!

Your help is needed to stand up against opposition to the policy! The policy was recently presented at the annual Human Rights Campaign (“HRC”) Gala, which former Clinic member Tierra Ragland had the privilege to attend on February 21st. For those that are unfamiliar with the HRC, it is the nation’s leading authority on lesbian, gay, bisexual and transgender issues.

Tierra Ragland at the HRC Gala.

Tierra Ragland at the HRC Gala.

Ragland reported that “several elected Charlotte officials attended the gala.” She also voiced concern that although these officials were in attendance, she was very interested in seeing if their voting will reflect expanding protections to include all people. At the gala, the HRC handed out cards with the Call to Action with the following statement:

“On March 2nd, the Charlotte City Council will decide whether to update the city’s non-discrimination laws to protect lesbian, gay, bisexual and transgender residents and visitors from arbitrary discrimination in public accommodations, commercial contracting, and passenger vehicles for hire. No one should be refused service in a restaurant or taxi just because of who they are.”

If you believe that people deserve to be treated fairly and equally at all times under the law and that Charlotte should be held responsible for protecting all people from discrimination, bullying and unfair treatment of any kind, then please heed the Call of Action above and stand-up to hate. If you are unable to attend on March 2nd, you can still stop discrimination in its tracks by sending an email or calling Charlotte leaders letting them know you support non-discrimination policies:

Mayor Dan Clodfelter
704-336-2241
mayor@charlottenc.gov

Mayor Pro Tem Michael D. Barnes
704-509-6141
barnesforcharlotte@gmail.com

Claire Green Fallon
704-336-6105
cfallon@charlottenc.gov

David Howard
704-336-4099
info@davidhowardclt.com

Vi Lyles
704-336-3431
vlyles@charlottenc.gov

Patsy B. Kinsey
704-336-3432
pkinsey@charlottenc.gov

Al Austin
704-336-3185
aaustin@charlottenc.gov

LaWana Mayfield
704-336-3435
lmayfield@charlottenc.gov

Gregory A. Phipps
704-336-3436
gaphipps@charlottenc.gov

John N. Autry
704-336-2777
jautry@charlottenc.gov

Kenny Smith
704-574-7241
krsmith@charlottenc.gov

Edmund H. Driggs
704-432-7077
ed@eddriggs.com

When fair-minded people join together anything is possible!

[1] See http://charmeck.org/city/charlotte/CityClerk/Documents/Agendas/2015/02.09.15.pdf#search=Transgender%20ordinance to review City Attorney Robert Hageman’s briefing paper and proposed draft of the policy and to access the Human Right’s Coalition’s “Frequently Asked Questions.” (41-56).


Religious Freedoms of Public Employees: Why the Magistrate Recusal Bill is Unconstitutional

February 26, 2015

By: Adam Melrose

The North Carolina General Assembly is attempting to limit individual rights once again. Senator Phil Berger, a Republican from Rockingham, NC, filed a bill on January 28, 2015, entitled “Magistrates Recusal of Civil Ceremonies.”[1] This bill would allow any magistrate the right to recuse him or herself from performing a lawful marriage on the basis of a “sincerely held religious objection.” In addition, any magistrate recusing him or herself under this bill would be immune from any disciplinary action resulting from his or her refusal to marry a couple that, under the law, may be lawfully married in North Carolina.

What does this bill mean?

The bill has been featured prominently in the news since it was first introduced in the North Carolina legislature. However, the media has generally provided an erroneous description of this bill, labeling it an “anti-gay marriage bill.” There is some truth to the news reports’ descriptions. This bill appeared in the General Assembly just months after the Federal Fourth Circuit of Appeals ruled that banning same-sex couples the right to marry was unconstitutional. However, this description does not convey the full weight and magnitude that the bill could bring to bear. This bill allows for a magistrate to recuse him or herself for “any sincerely held religious objection.” It does not include language that limits recusals to religious objections based solely upon same-sex marriage.

Under the exact language of the bill, a Catholic magistrate could refuse to perform a marriage of a couple who had been previously divorced by stating that his deeply held religious beliefs object to all divorces. The media, by focusing the general public’s attention on the divisive issue of same-sex marriage, has inadvertently kept the public eye off the true insidious nature of this bill. While there are still plenty of people in North Carolina who are opposed to same-sex marriage, there are few people who would affirmatively state that a public official can refuse to perform a marriage of a previously divorced couple. However, even if the bill was only directed at same-sex marriages, it is unlikely that Berger’s bill would survive constitutional challenge upon being passed into law.

First Amendment Justifications

Berger’s rationale for this magistrate recusal bill is simple: Berger believes that this bill “offers a reasonable solution to protect the First Amendment rights of magistrates and register of deeds employees while complying with the marriage law ordered by the court – so they are not forced to abandon their religious beliefs to save their jobs.” This rationale does not withstand constitutional scrutiny because magistrates are public employees and therefore must abide by the law.

Photo courtesy of Getty Images.

Photo courtesy of Getty Images.

A public employee has no right to object to restrictions placed upon his or her conditions of employment, including those restricting constitutional rights.[2] As Supreme Court Justice Oliver Holmes once said, “A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman.” State actors, as the literal “hand” of the government, are required to follow the laws of the government, even if following those same laws may conflict with personal views held by the government employee that would otherwise be constitutionally protected if the individual worked in the private sector. If the government employee has an issue with a law, it is that employee’s prerogative to quit his or her job and seek employment elsewhere.

Furthermore, the state may not selectively apply laws as it sees fit based upon the whims of each individual state employee. The Equal Protection Clause of the Fourteenth Amendment prohibits this practice explicitly. The Fourteenth Amendment states that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” [3]  The law, as it now stands, affirmatively states that bans on same-sex marriage are unconstitutional. As a result, magistrates, acting on behalf of the government, may not deny a marriage license to a lawfully eligible couple without running afoul of the Fourteenth Amendment. The privately held beliefs of the magistrate are of no consequence, no matter Berger’s attempts to use the language of the First Amendment as a smokescreen for an unconstitutional action.

Berger’s magistrate recusal bill is also not reconcilable with some of the other language in the First Amendment itself. While Berger goes to great lengths to argue that the bill is to protect the magistrate’s “religious beliefs to save their jobs,” this only addresses the “freedom of speech” portion of the First Amendment. [4] The First Amendment also requires the separation of church and state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Supreme Court Justice Hugo Black famously stated that the government may not “pass laws which aid one religion, aid all religions, or prefer one religion to another . . . in the words of Jefferson, the First Amendment clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”[5]

A Step in the Wrong Direction

This bill, without a doubt, creates a situation where the state government, through its employees, would be able to act based upon their “sincerely held religious objections.” It is irrelevant that there may be magistrates of every religious creed affected by this legislation; the Establishment Clause does not allow the government to pass laws to aid any religion even if the bill does not discriminate in favor of any religion in particular. Berger’s bill discriminates against those magistrates who hold strong moral beliefs that are not centered in religious ideology. This quandary is at the very heart of what the Establishment Clause was created to prevent.

The Magistrates Recusal of Civil Ceremonies bill is a poorly constructed attempt to attack constitutional freedoms central to our country’s creed. The fact that this attack is shrouded by homophobic zealotry adds insult to injury. The members of the General Assembly should look beyond the trappings of Berger’s bill and realize that if this bill were to be passed into law it would only hurt North Carolina’s public image. Besides, Berger’s bill would not make it a month in the court system before being ruled unconstitutional. This is not the attention North Carolina wants, or needs.

 

UPDATE: On February 25, 2015, the NC Senate passed the bill 32-16, exempting magistrates from performing weddings. For more information, see the News Observer and the NC Legislature Bill History.

 

[1] The filed bill can be accessed online here: http://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S2v0.pdf.

[2] Connick v. Myers, 461 U.S. 138, 142-43 (1983).

[3] U.S. Const. Amend. XIV.

[4] U.S. Const. Amend. I.

[5] Everson v. Board of Ed., 330 U.S. 1, 16 (1947).


Clinic Efforts Featured in the NACOLE Review!

February 24, 2015

logo

In the most recent issue of the National Association for Civilian Oversight of Law Enforcement’s quarterly publication, the Review, our Clinic was featured! Clinic alumni Isabel Carson and Celia Olson wrote an article with Professor Jason Huber for the Review that highlighted our Clinic’s efforts on the Citizens Review Board (“CRB”) project. The CRB was established to bridge community-police relations here in Charlotte, and our Clinic has worked diligently over the years to create transparency within the CRB. We have had so much success with this project here in our community and continue to advocate for transparency across North Carolina.

To read the article in its entirety, click here and scroll on over to page 5: NACOLE_2015_WINTER. To find out more about our work on this project, click here, here, here, and here.


Immigration, Legislation, and the Tension Between the Two

February 19, 2015

By: Edith Hinson

Since the beginning of November, when it was confirmed that President Obama was going to speak on the issue of immigration, pundits from both sides began speculating as to what he would say. After all – what could he say? The proposed immigration legislation had been stalled in the House for over a year by that time; and yet the need for that legislation was ever-increasing, as more and more migrant children were crossing into the U.S. on their own. The call for immigration reform was roaring, but the legislators were giving it a deaf ear. In an exercise of his executive power, the President decided to take the problem into his own hands and make swift decisions about how to prioritize enforcement of our current laws in a way that is realistic, progressive, fair, and legal.

cns

Photo courtesy of http://cnsnews.com/.

 

“Our immigration system is broken…” [1]

The President chose these words as his opening remarks, and the truth of the statement is blatantly obvious. No matter which side of the issue you fall on, the fact that the current set of laws are being neither followed by the people nor enforced by the agencies demonstrates that the current system is not effective. Whether it is because the people breaking the rules are not being punished or because the conditions of the immigrants’ home countries are getting so volatile, the result is the same. Non-citizens are here in America, and we can either ignore it, or deal with it.

“A bipartisan bill [passed] in the Senate, but…the House refused…to vote [on it.]”

Immigration reform was a key objective of Obama’s platform for election. Pursuant to his promise to make it a priority, he advocated for the DREAM Act [2], which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement. After intense debate in the Senate, members of both parties came up with a draft they could all live with. Once the Senate passed it, they sent it over to the House of Representatives. Key leaders in the House have since stalled the bill, refusing to allow it to go to a vote. The President, facing intense opposition from the GOP-held House of Representatives, chose to take immediate action in an attempt to alleviate growing tensions across the board.

The Executive Order

With intense pressure from both sides of the aisle to do something about the immigration crisis, and with the refusal of Congress to act in such a way that allowed for progress, the President chose to announce new enforcement priorities rather than hold his breath until the House stopped bickering with each other.

Under Article II, Section I, of the United States Constitution, the President is not able to write laws per the executive order clause. Rather, he or she has the authority to review the framework of the current laws and announce to lower enforcement personnel how the law should be applied. Think about the states where marijuana has been legalized. The federal government could identify the purveyors and users of the illegal drug and arrest them, but they have made the executive decision that it is not currently a priority to do so. They would rather target big-time traffickers of heavy narcotics than non-violent marijuana smokers. This is simply an example of members of the executive branch exercising their constitutional right to enforce the laws within their own discretion. [3] Just like it’s not realistic to indict every pot-smoker, the President’s executive order on immigration recognizes it is similarly unrealistic to deport every immigrant. 

The Reason We Allow for Discretion

It all comes down to the bottom line: money. We simply don’t have the money, or the resources, to enforce every law on the books to the “T.” Therefore, the executive branch of the government must decide how to best enforce the laws we have with the resources that are available.

The President summed this up very succinctly in his speech on Nov. 20 when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.” We just simply don’t have the resources and personnel to do such a thing. But when our laws require something that we are literally not able to do, shouldn’t we amend them? This seems to be a logical answer, but that’s not always the case. Sometimes laws are so archaic, it is obvious that they shouldn’t be enforced; and when everyone agrees to not enforce them, it doesn’t necessarily make sense to spend time and money amending them. Additionally, sometimes the timeline of the legislative process is not keeping pace with the escalating need. The latter situation is what’s true here. Therefore, the President had to do something to give consistent direction to the enforcers of our laws on how to best do their jobs.

 The Plan

 The President laid out a clear plan to reform immigration by:

  • Enforcement personnel on the border will be allotted more resources.
  • High-skilled immigrants who demonstrate a clear benefit to our economy will have an easier time getting to the U.S. than those with fewer skills to offer.
  • Non-criminal immigrants with American children who have been in the U.S. for more than five years and are paying taxes will receive temporary stay from deportation.

What does this plan really mean? President Obama explained: “If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.” 

The Impact

What then is the message? To law enforcement personnel within the country, the message lets them know that they can spend their time and energy locating criminals and removing them from the country. This message also lets the border enforcement know that they are going to get more money to keep up the hard work. After all, since Obama has taken office, border crossings have been cut by more than half. With more resources headed their way, illegal crossings will be further stemmed. And with direction given to the internal enforcement personnel, criminals will be deported and the country will be safer.

It is important to recognize that nothing that President Obama announced on November 20 is written in stone. The relief from deportation that he gave to non-criminal immigrants is contingent on their staying out of trouble, expires in three years, does not lead to permanent residency or citizenship, and is revocable at the will of the executive who is elected into office next year. It is nothing more than an announcement of the priorities that law enforcement officers are to follow, as recommended by the top law enforcer in the nation.

In a way, calling the President’s announcement “reform” is a misnomer. In no way does it reform our system, but perhaps it will be instrumental in reforming our way of thought. Without identifying the problems, we are unable to draft a workable solution. Therefore, once the President’s enforcement priorities are put into practice and we are able to measure the positive and negative changes that transpire, we will be able to take a more educated and progressive step on immigration. Absent action by Congress, however, the piece-meal approach as effected by executives will be the best bet we have to modifying the system to meet our current needs.

[1] The full-text speech is available at http://heavy.com/news/2014/11/president-obama-immigration-reform-speech-full-text/.

[2] DREAM is an acronym for “Development, Relief and Education for Alien Minors.”

[3] U.S. Constitution, Art. II, Section I.


Advice Clinic for Community Nonprofits

February 17, 2015
Clinical student representatives from the Community Economic Development Clinic.

Clinical student representatives from the Community Economic Development Clinic.

The clinical students from the Community Economic Development Clinic recently held an Advice Clinic for Community Nonprofits at the Charlotte Mecklenburg Library. Ten community nonprofits benefited from the Clinic’s service, making this quite a successful event!

 


“A monumental day for not just civil rights, but human rights and human dignity”

February 12, 2015

Less than two weeks ago these powerful words were uttered by Bernice King, the great Dr. Martin Luther King’s daughter, in a courtroom just down the road from our law school. In this same courtroom, even the presiding judge, Judge John C. Hayes III, announced: “We cannot rewrite history, but we can right history.”

What happened in the courthouse to illicit such powerful statements? A group of young men, known as the “Friendship Nine,” were vacated from their convictions of over fifty years ago. The Friendship Nine was made up of David Williamson, James Wells, Willie McCleod, Willie Thomas “Dub” Massey, Clarence Graham, John Gaines, Thomas Gaither, Mack Workman and Robert McCullough. On January 31, 1961, these eight young black men from Friendship College, along with Civil Rights activist Gaither, carried out a sit-in at a lunch counter of the five and dime store in Rock Hill, SC, now the site of the Five & Dine. All nine were charged with misdemeanor trespassing charges.

Five of the Friendship Nine members sit at the lunch counter of the Five & Dine in Rock Hill on December 17, 2014. Photo courtesy of Jason Miczek/Reuters/Landov.

Five of the Friendship Nine members sit at the lunch counter of the Five & Dine in Rock Hill on December 17, 2014. Photo courtesy of Jason Miczek/Reuters/Landov.

The Friendship Nine’s sit-in quickly became a hallmark for the Civil Rights Movement of the 1960’s, as they initiated the “Jail No Bail” protests nationwide. This form of protest means that jail time is chosen over paying court fines. The Friendship Nine were sentenced to 30 days of shoveling sand at a prison camp. The idea that these nine clean-shaven young college men were shoveling sand in prison, sparked a movement across the South. Suddenly, there was a reinvigorated effort to end segregation, and to do so by not just paying the monetary consequences that challenges to the law would impose.

The Friendship Nine has a very special quality to them. Not only did they reinvigorate the movement across the South, but when these sentences were recently vacated, even the courtroom players were symbolic: Judge Hayes is the nephew of the judge who handed down the original sentence; Ernest A. Finney, Jr., the original lawyer who defended the case on behalf of the Friendship 9, came back and represented them again; and the prosecutor for the State, Kevin Brackett, apologized profusely on behalf of South Carolina.

Along with the court’s multiple statements made regarding the importance of “righting” history and vacating these judgments, the court is allowing this case to live on. Every state has some kind of recordkeeping system in place that destroys criminal records after a certain number of years. For this case in particular, however, Mr. Brackett asked that these records be maintained so that the men would be remembered in history forever. When consenting to this request, Judge Hayes stated, “This will remain part of our history as corrected.” We, in our own experience here at the Clinic, have run into more than enough destroyed records issues when trying to help people seek relief of their past convictions. The fact that these records are being maintained shows the true importance and value the State of South Carolina has placed on the case of the Friendship Nine.

 

Stay tuned… We are working to cover this impactful story further!


Register NOW for the CSL Law Review Symposium!

February 6, 2015

RevisedPoster

Charlotte Law Review is hosting another Hot Topic CLE this year! Please join us Friday, February 13th for a Symposium on the Right to Privacy. We will have two panels – a morning panel including some of your favorite CSL professors, professors from other law schools, and Chief Judge Whitney, and an afternoon panel consisting of both prosecutors and criminal defense attorneys. The Symposium is worth 5.0 total CLE credits and is offered to CSL Alumni at the reduced rate of $90 for those who pre-register. General public and students are also welcome! This is an awesome chance to network with both educators and practicing attorneys in the area. Please visit www.charlottelaw.edu/cle for more information or contact sasnetta@students.charlottelaw.edu.


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