A Woman’s Choice

May 19, 2015

By: Jessica Petitt

Photo Courtesy of Redbloggy.com.

Photo Courtesy of Redbloggy.com.

It is unquestionably apparent to young girls, and women alike, that one of the most influential persons of this generation is Beyoncè. She remains one of the many females who advocate for women’s equal rights with empowering songs that allow her to be defined as a true feminist. According to Beyoncè, feminism is a person who believes in the social, political and economic equality of the sexes. In today’s society, many believe that to be considered true feminist a person must be a pro-choice advocate for women and their reproductive rights. According to the Feminist Women’s Health Center, pro-choice is defined as a way to support self-determination, to make decisions free from judgment, and the responsibility to your self with the freedom to decide to take control of your own life process. Discussions concerning abortions and pro-choice advocates have surfaced since the monumental Supreme Court decision in Roe v. Wade, 93 S.Ct. 705 (1971).

In Roe v. Wade, the Supreme Court legalized abortions for the first three months of a woman’s pregnancy. According to the Supreme Court, the ability for women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. Ever since this ruling, states have attempted to restrict women’s reproductive rights even further. This has become apparent with a newly enacted law in Tennessee criminalizing women who use narcotics while pregnant. [1] Even more recently, on March 31, 2015, North Carolina also proposed a bill that would allow pregnant women’s rights to be restricted. Specifically, North Carolina moms could soon face jail time for drug addictions that occur while pregnant, just as they now do in Tennessee. For many lawmakers, the big issue is the daunting task of balancing a woman’s right to bodily integrity with society’s interest in ensuring healthy pregnancies, and whether punitive approaches will foster–or hinder– healthy outcomes for women and children.

Bill Specifics

According to North Carolina General Statutes § 14-34.11, under this bill a woman may be prosecuted for assault for the illegal use of a narcotic drug, while pregnant, if her child is born addicted to or harmed by narcotic drug and the addiction is a result of her illegal narcotic use.[2] The law allows for an affirmative defense if the woman actively enrolls in an addiction recovery program before the child is born, remains in the program after delivery, and successfully completes the program, regardless of whether the child is born addicted to or harmed by the controlled substance. If this legislation is passed, it becomes effective December 1, 2015, and applies to offenses committed on or after that date. This bill calls into question the widely debated discussion of whether drug addictions are to be defined as health issues or criminal acts.

Health Issues vs. Criminal Acts

As a result of these new drug policies, many feminist activists believe women’s civil and human rights are under attack. To many, it seems as if legislators are now combining health issues with criminal issues. There tends to be a consensus in the medical community that addiction is a public health issue, and that treating drug use in pregnancy as a crime undermines the health of both women and children. According to the National Advocates for Pregnant Women, the punishment of pregnant women is typically targeted at vulnerable, low-income, and women of color who are all among those with the least access to healthcare or legal defense.

Photo Courtesy of Babble.com.

Photo Courtesy of Babble.com.

Dangers in the Unknown Information

Lynn Shoemaker, advocacy and issues director for Women AdvaNCe, a nonpartisan institute that advocates for women, expressed concerns that the bill would have a chilling effect on women seeking prenatal care. The concern is that women who are criminalized for their drug use will be unable to provide for their families or children if they are sitting in jail. Furthermore, many critics of the bill are concerned that this recent legislation will be a gateway for other legislation that could further impact the healthcare of women, such as regulating any medications that affect the birth of a child or the development of the fetus.

According to the American College of Obstetricians and Gynecologists, screening for substance abuse is part of complete obstetric care and should be done in partnership with pregnant women. All women should be asked about their use of alcohol and drugs, including prescription opioids and other medications used for nonmedical reasons. If women now face the issue of being criminalized for their actions, there is a concern that they will likely hide the fact that they are using prescriptions and the mother, along with the fetus, will not receive the appropriate care that is needed. Leading medical and public health groups such as the American Academy of Pediatrics, the American Medical Association, and the American Public Health Association of the March of Dimes, all oppose punitive responses, such as the proposed criminalizing statutes, for prenatal drug use.

Slippery Slope

The question remains just how far this type of legislation will go. Advocates of reproductive rights are concerned about the law’s potential to interfere with a pregnant woman’s autonomy. There is much at stake for the reproductive rights community in its ongoing fight to protect the bodily integrity of a pregnant woman in the precarious situation of drug use. However, many reproductive rights activists state that the community has an equally strong interest, even an obligation, to work toward ensuring healthy pregnancy outcomes for these women. Is this what the Supreme Court intended to happen with reproductive rights after Roe v. Wade? When is the line crossed?

[1] Tenn. Code Ann. §§39-13-107, 2010.

[2] N.C.G.S. § 14-34.11 (2015).

 


Gone But Not Forgotten: Application of the Public Trust Doctrine to Preserve North Carolina’s Resources

May 7, 2015

By: Jason Arter

In a quest for more energy sources, the land and the resources are quickly being abused. The public must know that there alternative means to protect the basic resources needed for life in general. The Public Trust Doctrine (herein “Doctrine”) in its most current application dictates the protection of resources for citizens of the state; it can be a useful tool for the states as adopted in the federal judicial system. Although this Doctrine has never been codified, judges have engineered a basic set of principles that allow states natural resources to be protected. The Doctrine was developed through the federal government as a means to protect critical natural resources such as forests, land, and most importantly water. It is now incumbent upon the states to use this Doctrine to protect the environment inside each state’s respective borders.

The rights of one should not jeopardize the rights of many, in my opinion. Allowing individuals, energy companies, and states to use methods, such as off shore drilling, to extract oil reserves is a violation of the Doctrine when the extraction damages resources that have been dedicated to the public for their welfare. If allowed to use this method, the damaging effects can be quickly realized, and those effects such as damaging water reserves can be catastrophic. Thus, the natural resources, such as clean drinking water, which would otherwise provide for many, will be jeopardized. Effective application of the Doctrine, through state and local action, will not only guarantee the protection of natural resources, but ensure the protection of rights as established in many state constitutions. The natural resources in North Carolina have been set aside for the citizens of the state. The state constitution reads in Article 14 Section 5:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty.[1]

A narrow and naive perspective would allow a person to think that this will not happen to our state, but just ask the citizens of the gulf after the BP Deepwater Horizon disaster.

Deepwater Horizon aerial view of the explosion. Photo courtesy of nbcnews.com.

Aerial view of the BP Deepwater Horizon explosion. Photo courtesy of nbcnews.com.

The state and its political components have a duty, and it is the responsibility of the citizens to remind those in office of this forgotten doctrine. Although it may appear a daunting task, a simple letter, a call to a person’s representative, or a grass roots signature campaign may raise the awareness levels of the elected officials duties. Those duties are clearly documented in the constitution of this state and countless other states.

Development of the Public Trust

As initially applied, the Doctrine protected commerce on the public waterways.[2] This Doctrine, however, has evolved, morphing into a tool for concerned citizens to protect wildlife and the natural resources of the state. It is under this developing model that the Doctrine has begun to gain traction in the preservation of natural resources.[3] As early as 1896, this concept of “public trust” was applied in American courtrooms. Initially, the concept within the United States courts was only used for navigable waterways and the adjacent land when the tides were low.[4] Although the concept has never been codified into federal law, it has been recognized as a “backbone” principle in deciding cases affecting states and their rights regarding land issues.

States have begun to effectively use this Doctrine in preserving not just water, but drinking water. The California Supreme Court has stated:

The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. The principle, fundamental to the public trust. . . prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.[5]

This, however, is not a new American concept. The initial Doctrine can be traced back to the early Roman Empire. It was believed, in its most basic form, that, “[b]y the law of nature,” every citizen was entitled to the common resources of the Empire. Among those being clean air, running water, seas, and the shores of the seas.[6] It is under this model that the Doctrine can be applied to the current issue of offshore oil drilling, which has become an issue for the citizens of North Carolina and the resources of this state.

Although its roots have evolved from the times of the ancient Romans through the English court system, the principles associated with the Doctrine have been successful in the modern courtroom.

North Carolina should recognize the harms associated with offshore drilling and the conflict that is created by not ensuring clean water resources for the citizens of this state. Although fracking is considered more damaging to ground water, the issue of fracking has been settled among the counties in this state. With the issue of fracking addressed, the potential of damage now stems from the potential of offshore drilling.

Why Does It Matter?

Since his inaugural speech, Governor McCrory has pushed for offshore drilling and has renewed the pressure directly at the Obama administration to relax federal legislation, which would allow drilling to begin sooner rather than later. The offshore drilling concern in North Carolina was heightened when Governor McCrory formed a coalition (which he also heads) with South Carolina Governor Nikki Haley.[7]

In recent events, the Obama administration has also begun to weaken in its attempts to limit offshore drilling. President Obama has agreed to allow federal licensing to begin for several tracks of ground located fifty miles off the coast of North Carolina.[8] This opens the door for the drilling to begin, promoting the ideas of energy independence and national security. Both ideas are worthwhile, but the risk versus the reward is the primary concern.

National security–although listed independently–seems to be a byproduct of the goal of energy independence. Governor McCrory has also stated that thousands of jobs would be created, and millions of dollars would be generated into the state’s economy.

All of these goals on the surface would be beneficial, but it only takes one BP Deepwater Horizon Disaster to erase all of it. It only takes one spill to contaminate coastal waters, and the water supplies of countless communities. The question has been raised regarding increased safeguards. These safeguards would come at the expense of the citizens as taxpayers, for whom the resources should naturally be protected. It seems counterintuitive that when a constitution sets the resources to be protected for the citizens, the citizens should pay for something that is natural.

The Doctrine then becomes a critical tool for the prevention of these dangers. As an established right in the constitution of North Carolina, citizens should not be denied clean water for the pursuit of a bottom line profit margin. The resources of this state are for the citizens to use and enjoy, not for a company to ruin with a profit as its only goal. Although at first glance, the drilling offshore may not be a civil rights issue, a quick reminder of the lives, jobs, industries, and resources that were all lost with just one incident should be remembered. The question of speculation surrounding the potential for disaster seems to ease the concerns for some, but why wait and be reactive to a disaster, when proactive prevention can be the answer?

[1] N.C. Const. art. XIV § 5.

[2] Illinois v. Illinois Central R.R. Co., 184 U.S. 77, 22 S. Ct. 300, 46 L.Ed. 440 (1902).

[3] Michael C. Blumm & Rachel D. Guthrie, Internationalizing The Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision, 45 U.C. Davis L. Rev. 741, 745 (2011).

[4] Parks v. Cooper, 676 N.W.2d 823, 837 (S.D. 2004).

[5] National Audubon Society v. Superior Court, 33 Cal. 3d 419, 445 (Cal. 1983).

[6] Allan Kanner, The Public Trust Doctrine, Parens Patriae, and The Attorney General as the Guardian of The State’s Natural Resources, 16 Duke Envtl. L. & Policy F. 52, 67 (2005).

[7] Amara Omeokwe, Gov. McCrory Applauds Offshore Drilling Proposal for Carolinas, 2015, Time Warner Cable News, available at http://www.ny1.com/nc/coastal/news/2015/01/28/gov–mccrory-applauds-offshore-drilling-proposal-for-carolinas.html.

[8] Ben Geman, Obama Proposes Opening Atlantic Ocean to New Oil Drilling, 2015, National Journal Online, available at http://www.nationaljournal.com/energy/obama-proposes-opening-atlantic-ocean-to-new-oil-drilling-20150127.


Last in Line for Change: North Carolina’s Prosecution of Misdemeanor Offenses committed by Sixteen- and Seventeen-year-old Youth

March 24, 2015

By: Kai Toshumba

Two states, North Carolina being one, are stuck on sixteen while the other forty-eight states throughout the country treat sixteen- and seventeen-year-olds as youth in the juvenile justice system.[i] In North Carolina your ability to be prosecuted in the juvenile justice system for a misdemeanor offense stops at the age of fifteen. This means, any sixteen or seventeen-year-old juvenile that commits a misdemeanor offense is prosecuted in the adult criminal court system.[ii] The biggest difference between juvenile and adult records is that, juvenile records are sealed and do not follow a child once they become an adult. As the law stands, once a child turns sixteen the charge is on their record for life. Do you remember when you were sixteen? Would you want a record of your actions from that age looming over you for the rest of your adult life?

The adult court system focuses on crime and punishment while the juvenile justice system focuses on “punishment and treatment.” Most notably, the juvenile justice system holds youth and their parents accountable, unlike the adult system. The juvenile justice system has positive benefits for youth who commit misdemeanor offenses; youth who go through the juvenile system are less likely to return to the system than those dealt with in the adult system. Moreover, forty-eight percent of youths who have been arrested have a greater chance of receiving rehabilitating services tailored to keep young people on the right path compared to twenty-three percent in the adult system. These services include: frequent contact with a court attorney, assessments, mental health and substance abuse treatment, and counseling. This is a good thing folks, and contrary to popular belief, this is not a get out of jail free card; the juvenile justice system holds young people and their families accountable.

We should talk about race/ethnicity.

If you polled a minority community on the sentiments regarding the number of individuals of color who enter the juvenile or adult court system, most of the community would say the statistics are disproportionate and affect their community. How do disproportional arrest and conviction rates affect minority youth throughout the nation? The statistics are startling, but not surprising. Accordingly, “[in] states with the highest rates of disproportionate confinement of African-American children, those children are incarcerated at a rate that is between ‘twelve and twenty-five times’ that of white children.”[iii] Throughout the nation, “Latino youth are admitted to state facilities at higher rates than whites, even when charged with the same crimes.”[iv] And “Native American children are detained at two-and-a-half times the rate of white children.”[v]

Photo courtesy of ABC Television Network.

Photo courtesy of ABC Television Network.

The short and long term effect of these convictions on a juvenile’s record is profound and extends to all areas of their lives. Arrests, court hearings, and sentenced time impede a young person’s ability to have a chance at completing their education and being a productive member of society. According to the North Carolina Governor’s Crime Commission Juvenile Age Study, an individual’s arrest records, especially convictions and incarceration, reduce future earnings of offenders and decrease their overall likelihood of gainful employment. When national averages reveal that minority youth are being arrested, convicted, and incarcerated at higher rates than their white counterparts, North Carolinians must look critically at our juvenile system. North Carolina is last in line to change a system that allows misdemeanor offenses of sixteen and seventeen year-olds to be prosecuted as adults, and we should encourage expedient reform of a current legislative bill because frankly, time enough.

 Reform is on the Horizon.

The age of juvenile jurisdiction in North Carolina was established in 1909, and has since remained unchanged. It took more than 100 years for the age of juvenile jurisdiction to even be considered, and on April 11, 2013, the “Raise the Age” Bill was introduced to the North Carolina General Assembly and in 2014, the NC House passed bipartisan legislation. Officially called the “Young Offenders Rehabilitation Act,” the bill is “an act to establish the juvenile jurisdiction advisory committee, to create a pilot civil citation process for juveniles, and to raise the age of juvenile jurisdiction to include sixteen- and seventeen-year-olds who have committed misdemeanor offenses.” Since coming into the Senate’s possession in May 2014, the bill’s progress has been labeled as, “Held in Senate Clerk’s Office.” This is not a good thing, and means the bill has come to a standstill until the Senate decides to further discuss the provisions of the bill and vote to make it law.

Critics of expanding the juvenile jurisdiction say that this expansion will cost North Carolina too much money, but reports indicate otherwise. The Governor’s Crime Commission Juvenile Age Study found that an enhanced juvenile justice system can save North Carolina money. Analysis shows that, changing the age of juvenile jurisdiction can create a net benefit of $7.1 million. Accordingly, an enhanced juvenile system can have a positive impact in North Carolina by reducing the rate of recidivism, which is considered re-offending, and reducing the cost per arrest for juveniles. Other states have had success in reducing the amount of juveniles who are sent to secure placement by introducing incentives for local jurisdictions by developing detention alternatives, or eliminating secure placement for certain low-level offenders. Nationwide trends show results in favor of enhanced juvenile justice systems that prosecute sixteen and seventeen year-olds as juveniles which have positive affects the future of a youth. The negative social and economic effect that a tainted record has on a young individual can affect their ability to be positive and productive citizens for the rest of their lives.

It is vital that North Carolinians encourage action from the legislature to evaluate what they have discovered through their own research, findings, and analysis that supports the expansion of the juvenile jurisdiction. Raising the age from fifteen to seventeen will allow more children the ability to refocus their lives through the programs the juvenile jurisdiction can offer and prevent an arrest record from impeding on their success as adults. A pivotal moment for North Carolina has been presented with the creation of the Raise the Age bill. It is essential that the legislature puts this bill back in motion to become law and ensure positive reform in the lives of children who encounter the justice system.

For more legislative information and to find your legislator visit www.ncleg.net and click on “Who Represents Me?” or call 919-733-7928.

[i] North Carolina, as well as New York, treat all sixteen- and seventeen-year-olds as adults when they are charge with criminal offenses.

[ii] N.C.G.S. 7B-1604. (a).

[iii] Megan Annitto, Juvenile Justice on Appeal, 66 Univ. Miami L. Rev. 671 (2012).

[iv] Id.

[v] Id.


The Laws Are A-Changin’: A Look into the North Carolina’s Statewide Misdemeanant Confinement Program

March 10, 2015

By: M. Claire Donnelly

As of January 1, 2015, new North Carolina law is in effect that requires all misdemeanor and Chapter 20 sentences[1] to be served at the local county jail.[2] This newest change to the sentencing laws is a component of the Statewide Misdemeanant Confinement Program (“SMCP”), which was established by the North Carolina Justice Reinvestment Act (“JRA”). Originally established to “improve public safety, reduce corrections spending, and reinvest savings in strategies that can decrease crime and reduce recidivism,” the JRA policies began reforming the North Carolina criminal sentencing statutes in 2011. While these goals of the JRA seem to show that the legislation was passed to benefit the system, further consideration needs to be made: is housing misdemeanants at the county jail truly benefitting the criminal justice system?

Development of the Law

To start, the difference between jails, also known as “local confinement facilities,” and prisons, should be noticed. Jails are run by the local government and are “used to confine persons who are awaiting trial on criminal charges, are serving short sentences imposed for conviction of a crime, or are being held for a variety of other reasons.” Prisons are operated by the state government and are generally for individuals sentenced for longer periods of time.

Inmates at a cell block of the New Hanover County Jail.  Photo courtesy of StarNews.

Inmates at a cell block of the New Hanover County Jail.  Photo courtesy of StarNews.

Prior to the enactment of the JRA, North Carolina was only one of two states that sent misdemeanants to prison.[3] Thus, North Carolina prisons had very high populations as compared to other states, and they continued to do nothing climb. Between 2000 and 2010 alone, the North Carolina Department of Corrections reported a 27 percent growth in prison population, increasing the number of prisoners by more than 40,000. The State projected that the number would continue to climb, estimating that by 2020, there would be a 10 percent increase in prison population.

Because of the growth, the State reached out to the Council of State Governments Justice Center, which conducted research and data on the criminal justice system.[4] Strategies to improve the system were made and the JRA was introduced to curb the rising numbers. Initially, the JRA sought to correct several issues in North Carolina, not just misdemeanants in prison; major changes have also been made to active time for probation violations, exiting prison without community supervision, and the allocation of community supervision resources. Now reports are coming out that nationwide state prisons are going to experience a three percent growth by 2018, while North Carolina is reporting an eight percent decrease.

In 2011, the original change to the, JRA in regards to misdemeanor charges, was that sentences 180 days or less would be within the SMCP. Under that law, all sentences over 180 days and certain Chapter 20 driving violations would be served in prison. Now the law requires that “[a]ll misdemeanor sentences in excess of 90 days and all DWI sentences, regardless of length, are served through the State Misdemeanant Confinement Program … at a local confinement or treatment facility, not in prison.” Because the new law now includes all DWI sentences, an individual could get up to 36 months in a local county jail, which is the maximum sentence under the DWI laws. This 36-month sentence is an alarmingly higher sentence than the 180 days of the SMCP’s original sentencing guidelines. 

Justice v. Money

The legislature is touting the SMCP because it is a moneymaker. In this most recent change to the JRA, the SMCP proposal received bipartisan support in the General Assembly. Money is the likeliest motivator: 10 state prisons have closed since 2011, which is projected to save the state $48 million; a reported $560 million dollars will be “saved or avert[ed]” by 2017; and these savings come with a $9 million annual budget for treatment and community-based programs that remains the same as it was prior to the change. The legislature needs to look past the dollar signs. The original monetary goal of the program was two-fold: to truly “avert” the savings and to compensate the local jails for housing misdemeanor offenders. Neither of these goals is getting accomplished.

First, the goal of the JRA and the prison closures was that money would be re-directed to hire new probation officers. Hiring an estimated 300 new probation officers under Governor Pat McCrory’s proposed budget would not only beef up the currently-existing probation officer staff of 1,500, but would also allow more offenders to receive supervised probation rather than active time. No change to the budget to allow for this has been made.

Second, the compensation for local jails causes financial strain for local government. The state is providing $40 a day for each individual incarcerated at the local jail under the SMCP. This is attractive to jails that may have extra beds and can opt-into the program, however, the costs to house an offender in a jail is much higher than just $40 in North Carolina. In 2011, the Department of Corrections estimated the actual cost was $64.59 per day. New Hanover County estimates the cost is currently somewhere closer to $80 to $90 per day. In a recent project with Mecklenburg County, Clinic members learned that costs to house an individual were higher than $150 a day. Thus, while it may be helpful to get money for empty beds now, as more people stay at the county jail, local governments will face a serious financial strain under this model.

 Effects on Offenders

Statistics make the JRA look good on paper—and the long-term benefits may ultimately be good—however, one cannot help but to question the conditions and lack of programs of county jails as compared to state prisons. In the Justice Reinvestment Act Implementation Evaluation Report, an alarming statement confirms this consideration that needs to be made: “Programming (e.g. substance abuse treatment, CBI programming) for offenders housed pursuant to the SMCP is not available; generally, programming is not required in local jails.” With the minimal monetary allotment that counties are getting to house these misdemeanants, there are no additional funds available to provide the aforementioned resources they would have generally gotten in prison.

Along with lack of programming, it is unclear what will become of the good credit policies that exist for inmates. North Carolina’s Department of Corrections offered a variety of credit gaining programs for inmates, through the Inmate Nonprofit Program and other sentence reduction policies. The policies state: “When inmates are assigned to local confinement facilities or jails… the Sheriff or Administrator of the local confinement facility shall establish procedures for granting, approving, and documenting sentence reduction credit awards.” This potentially may cause another strain on local jails, in addition to monetary strains.

A noted benefit of the program is that it puts offenders closer to their families, being that they are not transferred to one of the state prisons, but rather remain in the county in which they committed the crime, or in a nearby county. So far 50 of the 100 counties have committed to participate in the SMCP, each with a varying number of available beds. While it may be positive for some offenders to be closer to friends and family, several realities may outweigh this benefit. Some incarcerated individuals do not have friends and family support. Others have been charged with a crime far away from home, making the goal of incarcerating them near home impossible. And this benefit is easy to evaporate, as once beds fill up in a jail that participates in the SMCP, the jail can “withdraw from the program completely,” causing those that would be near home to not reap this benefit of the program.

While the state makes money, potential harm could be occurring to the criminal justice system. Length of stay in local jails is now an issue. This issue needs to be addressed because several problems are going to occur to the local governments, and the resources available to inmates are evaporating. With the JRA, the state has saved money and the inmate population has been reduced, but has this occurred to the detriment of our system?

For more detailed information on the JRA and the other major changes it enacted, see the Justice Reinvestment Act Implementation Evaluation Report or the Justice Reinvestment in North Carolina: Three Years Later Report.

[1] Most states keep misdemeanants—individuals convicted of a misdemeanor—at the local jail because misdemeanor offenses are nominal crimes compared with felony offenses.

[2] The Council of State Governments Justice Center is a nonprofit devoted to “provid[ing] practical, nonpartisan advice and evidence-based, consensus-driven strategies to increase public safety and strengthen communities.” More information about the Justice Center can be found at http://csgjusticecenter.org.

[3] Chapter 20 violations covered by this statute include Driving While Impaired (DWI), Driving with a License Revoked (DWLR), and other motor vehicle violations.

[4] N.C.G.S. 15A-1352(a).


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).


Rally to Restore the Fourth (Amendment) to be held July 4th, 9am at Trade and Tryon.

July 1, 2013

Restore the Fourth is a grassroots, non-partisan, non-violent movement that seeks to organize and assemble almost 100 protests nationwide on July 4th, 2013.  Restore the Fourth Charlotte is a coalition of with a broad political background who demand that the government of the United States of America adhere to its constitutionally dictated limits and respect the Fourth Amendment. We seek to raise public awareness of the unconstitutional surveillance methods employed by the U.S. government.

Restore the Fourth maintains that justification of the Fourth Amendment beyond the original text need not be given; the legitimacy of which is self-evident. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment of the Bill of Rights clearly protects all citizens’ assets, both digital and physical, against searches and seizures without warrant.  We aim to assert those rights and insist that the proper channels of government work to ensure that all policy complies with the supreme laws of the United States of America in their entirety.

Restore the Fourth requests that American citizens’ right to privacy is respected and stands with the Electronic Frontier Foundation and StopWatching.us on their open letter to Congress. As informed members of the American electorate, they endorse and echo the letter’s demands:

1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;

3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.

This movement intends to bring an end to twelve years of Fourth Amendment abuses and to ensure that all future government surveillance is constitutional, limited, and clearly defined.  On July 4th at 9:00am, Restore the Fourth Charlotte will rally at the corners of Trade and Tryon to demonstrate the need for a return to the principles of the Constitution. We urge you to join us on the most patriotic of days and to help spread awareness of these violations of our Constitution.


Ban the Box in the News

April 21, 2013

Over the past two months public dialogue about Ban the Box has increased, spurred on by the Charlotte City Council’s decision to send the issue to the Economic Development Committee.  Several local media outlets exposed the issue to a wider audience, and helped Charlotteans begin to understand the importance and details of the proposed ordinance.

Creative Loafing highlighted the contributions of Councilwoman Mayfield and the Civil Right Clinic in getting the City Council to consider the needs of the thousands of Charlotteans who have conviction histories and are looking for work.  Councilwoman champions ‘Banning the Box:’ Spearheaded by LaWana Mayfield, job application question regarding prior convictions debated in city committee.

The Charlotte Observer ran an editorial by Civil Rights Clinic member Cleat Walters III, which highlighted the benefits of the ordinance to the City.  Banning ‘the box’ eliminates unfair obstacle to jobs

Unfortunately, not all of the stories in the media were accurate.  While we all have sympathy for the family and fiance of murder victim Danielle Watson, who was killed during a robbery inside the Flying Biscuit, WBTV’s story highlighting his opposition to Ban the Box “Murder victim’s fiance outraged over bill to remove “felon” question from job application” fails to identify the fact that the ordinance does not prohibit criminal background checks for job applicants.

Hopefully, Charlotte will follow cities like Richmond that recently enacted a similar ordinance as reported by The Richmond Times-Dispatch.  Richmond City Council unanimously passes ‘ban the box’ ordinance.

Ban the Box is slated for discussion during the May 2nd meeting of the Charlotte City Council’s Economic Development Committee.  The coalition hopes the  meeting room CH-14 in the Government Center will be packed when they consider this important measure at 12pm that day.


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