The state of civil rights in America

, Washington Proponents of gay marriage celebrated in front of the Supreme Court The US Supreme Court this week made it more difficult to ensure voting access and recognised more benefits for gay couples. As the court comes to a close, was it a good week or a bad week for civil rights?


The Supreme Court has published its final opinion of this term, closing on what some are calling a banner note for civil rights.

The court struck down the federal Defense of Marriage Act, opening the door for couples who are legally married in states that recognise gay marriage to receive the same federal benefits as heterosexual couples.

It also declined to rule on California's Proposition 8 banning gay marriage, deciding instead to send the case back to a lower court, which had already invalidated the ban.
Continue reading the main story

The sense of urgency that accompanies the immediate achievement of civil rights victories fades over generations”

End Quote Seth Kreimer University of Pennsylvania Game director Jason Rubin echoed the thoughts of many when he tweeted: "Strike down of #DOMA and death of #Prop8 are big steps in the civil rights movement of my lifetime. I am proud to witness and support."


But the rulings related to gay marriage came just a day after other rulings - including one on the federal law that protects the rights of minority voters - had activists worried that civil rights could be in peril.

In the voting rights case, justices revisited the Voting Rights Act, a 50-year-old law designed to protect minority voters. In part, it requires jurisdictions in 15 US states to receive federal approval when changing election laws.

While the court did not invalidate the law, it did require that Congress update the formula used to determine which states needed monitoring.

"The ruling is a major blow to civil rights advocates as it is widely believed that Congress, which currently uses data from as far back as the 1970s to determine that formula, will not be able to pass a new formula into law," wrote Sahil Kapur at Talking Points Memo. "As a result, the ruling has the practical effect of neutering the pre-clearance requirement."

As the week comes to a close, we asked experts: was it a good one or a bad one for civil rights?

States' rights rule supreme

The rulings both speak to the rights of the states to determine and protect the rights of their citizens, whether it's the federal government deferring to states' definitions of marriage or the right of states to determine their own voting regulations.

"They both support the notion of a reduced federal voice and limited federal power," said Jose Gabilondo, professor of law at Florida International University.

That fits with the general direction of the court under Chief Justice John Roberts, which favours the rights of states and businesses over federal intervention, Mr Gabilondo said. The trend can dangerous for the rights of minority groups who often benefit from consistent federal protection, he said.

Still, making a blanket statement about civil rights can be difficult, in large part because there is seldom consistency within the world of civil rights, which is a fairly broad term applied to a multitude of topics.

"The term 'civil rights' is a broad umbrella that is applied to a lot of issues, but if you look at the various subsections, they all have a different history," said Andrew Cohen, a national correspondent for TheAtlantic.com.

"Voting rights is rooted in the Civil War, while gay rights is recent," with most changes coming in just a generation.

The long history of voting rights as a civil rights issue, in fact, might make it more of a target for attack than gay marriage, which is relatively new.

"The sense of urgency that accompanies the immediate achievement of civil rights victories fades over generations," said Seth Kreimer, professor of law at the University of Pennsylvania.

"We have a generation of jurists emerging who have forgotten some of the reasons why predecessors made some of the decisions that they did."

The Voting Rights Act's detractors say a formula created 40 years ago is useless in a world with a black president. There is a pervasive attitude that laws created to help rectify racism in the century after the Civil War have outworn their welcome, creating more of a burden than a benefit.

"Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions," Justice Roberts wrote for the court.

Justice Ruth Bader Ginsburg, in her dissent, said neutralising the Voting Rights Act was akin to "throwing away your umbrella in a rainstorm because you are not getting wet".
Political pressure
By contrast, gay marriage is a civil rights issue that has moved with lightning speed, from being written off as impossible in the 1990s to being a defining issue of the gay community today.

Support for gay marriage, which now polls above 50% nationwide, also may have come into play.

"The Roberts court couldn't afford to look like a fossil," Mr Gabilondo said.

"The only thing the Supreme Court has is appearing credible. That means they have to be very nuanced, very hedged, very political."

But the small steps he sees the court taking have him concerned about civil liberties overall - especially considering some of the less-publicised decisions, like Vance v Ball State University, which narrowed the definition of who could be called a "supervisor" when workers sue for discrimination or harassment.

"That's not a civil right, but it's a proxy for power, abuse and structural inequality in society," he said.

Mr Kreimer, on the other hand, sees reasons for civil rights supporters to be hopeful, including another voting rights case, Arizona v Inter Tribal Council of Arizona, which upheld voting rights for Native American populations.

"The losses are losses that can be remedied, and the wins are wins that mark a way upward in American society," he said.

Of course, it is hard to predict the temperament of a court that so often changes.

"It's a fluid situation," said Mr Cohen. "In five years, it's very likely the make-up of the court will be different."

West Virginia's Birthday Recalls A State Born Of Civil War

In a previous version of this story, the photo caption incorrectly identified West Virginia's capital as Wheeling instead of Charleston.

Lincoln Walks at Midnight
stands outside the state capitol in Charleston, W.Va. The statue depicts President Abraham Lincoln contemplating the prospect of statehood for West Virginia.Vicki Smith/AP  Lincoln Walks at Midnight stands outside the state capitol in Charleston, W.Va. The statue depicts President Abraham Lincoln contemplating the prospect of statehood for West Virginia.
Vicki Smith/AP
One hundred and fifty years ago this week, West Virginia became the 35th state in the union.

Born in in 1863, the middle of the Civil War, the state was created by patriots who didn't want to join the Confederacy — no mean feat considering the political climate of the time.

Western Virginians were fed up with their eastern-dominated government, says Joe Geiger, director of the West Virginia State Archives. He says they also felt they didn't get fair funding for education and infrastructure.

On top of that, western Virginians opposed slavery — only 4 percent of the state's slaves lived there.

"You would naturally assume that there was an opposition to slavery in western Virginia, and indeed there was," Geiger tells Weekend Edition Sunday
host Rachel Martin. "But this was largely due to economic and political reasons, not moral ones."
So when the easterners in Richmond seceded from the union, western Virginians seized the opportunity to organize.

"I firmly believe that without the Civil War, we wouldn't have a West Virginia," Geiger says.

How West Virginia became a state

"What these folks do in Wheeling, these folks who are so determined to remain loyal to the union ... the first thing they do is try to create a union government, a replacement government for Virginia. In the end this is going to be key to West Virginia statehood, because according to the constitution, in order for a new state to be created from an existing state, the existing state has to give its permission."

What kind of people are West Virginians?

"West Virginia is the kind of state where you walk down the street and you speak to every person you see. You make eye contact, you smile; and I understand if you did that in New York, you might be looked at a little strangely.

"People care about one another, they take care of each other. We've had certainly different disasters and tragedies in our history, and the first thing that you see in response is people banding together to help one another."

 

Civil liberties advocates call for more oversight of NSA surveillance

Congress should press for privacy protections and more information about surveillance programs at the National Security Agency, some technology and civil liberties activists said Friday.

After recent news leaks about two broad surveillance programs at the NSA, it’s clear that congressional and court oversight of the agency is lacking, representatives of the American Civil Liberties Union and the Cato Institute, a libertarian think tank, told congressional staffers during a briefing on the NSA programs.

Oversight of the surveillance programs by the Senate and House of Representatives intelligence committees has been “pretty feeble,” Julian Sanchez, a research fellow at the Cato Institute, said at a surveillance forum hosted by the Congressional Internet Caucus Advisory Committee.

The limited number of lawmakers and the judges that are supposed to check the NSA programs appear to have fallen victim to a form of a governmental phenomenon called “regulatory capture,” when a body that is supposed to regulate an industry begins to “serve its interests,” Sanchez said.

Lawmakers outside the intelligence committees need to provide oversight of the programs, added Michelle Richardson, the ACLU’s legislative counsel.

“So far, Congress has allowed the intelligence committees to do secret oversight of secret programs allowed under secret court orders, and it has led to the collection of every American’s phone calls,” she said. “This cannot continue. The secret oversight is not working.”

Representatives of both intelligence committees didn’t immediately respond to requests for comment on the criticism from Sanchez and Richardson.

When the Federal Bureau of Investigation asks the Foreign Intelligence Surveillance Court for a broad swath of U.S. telephone records, there’s no opposing attorney, Richardson said.

“No one is representing the interests of the people whose records are collected,” Richardson added. “It is just the government before a secret court, and no one is representing the other side.”

Richardson and other speakers at the event called on Congress to add transparency to the surveillance court process.

The mass collection of data on U.S. phone calls and Internet communications under the two programs represents a “dangerous shift” in the way the government views the Fourth Amendment to the Constitution protecting U.S. residents from unreasonable searches and seizures, Sanchez said. There appear to be fewer prohibitions on the government collecting data and more mass collection, with some restrictions on how intelligence agencies can access the data they have collected, he said.

“Analysts themselves have the discretion to select which things are going to be queried for search,” he added. “Back-end restrictions on what you do [with the collected data] last only until you decide to change them, and the record so far suggests we won’t necessarily know if they decide to change them.”

While four of the five speakers at the event said they were troubled by the surveillance programs, lawyer Michael Vatis, a former official at the FBI and the U.S. Department of Justice, said he wasn’t overly concerned about reports of the NSA collecting Internet communications from nine Web service providers.

The Prism collection program, as described, appears to give the NSA little new surveillance power than it has always had, said Vatis, now a partner in the Steptoe & Johnson law firm. The NSA’s longtime mission is to provide surveillance on overseas communications, and the Prism program appears to be an extension of that, he said. The NSA is targeting U.S. Web companies because much of the Internet’s traffic routes through the U.S., he said.

Vatis said he had some concerns about the NSA’s bulk collection of U.S. phone records, but he takes some comfort that the agency is collecting phone numbers and not the content of phone calls.

If the NSA and DOJ have strong procedures in place to protect privacy, as they say, then the data collection can help protect U.S. residents, Vatis added. “In the worst-case scenario, when an individual brings a suitcase nuke onto Wall Street and detonates it, the questions are going to be, ‘The government had this technical capability to keep track of people, but didn’t use it,’” he said. “That will be the scandal.”

Critics of the data collection were surprised about the “breadth of the order” allowing the NSA to collect all Verizon phone traffic, countered Alan Davidson, a visiting scholar in the Technology and Policy Program at the Massachusetts Institute of Technology and a former public policy director at Google.

The data collection raises not only civil liberties and privacy concerns but also business concerns, Davidson added. “If people don’t trust these services, they’re not going to use them,” he said.

Vatis discounted the business concern. “Have many people stopped using Gmail or Yahoo?” he said.