The New York City Council voted overwhelmingly on a voice vote February 4 for a resolution "calling upon federal, state and local officials, and upon New York City agencies and institutions, to affirm and uphold civil rights and civil liberties." The main target of the resolution, which has no force of law, is the federal USA Patriot Act and Domestic Security Enhancement Act (DSEA) (also known as PATRIOT II), "which may further compromise constitutional rights and our government’s unique system of checks and balances." Thirteen members objected to the resolution out of 51 and one abstained. I dealt in detail with local concern about the Patriot Actlast month.
The resolution was promoted by the local chapter of the Bill of Rights Defense Committee, a coalition of 90 groups, headquartered at the New York Civil Liberities Union. It had been scheduled for a vote in December, but was delayed because Saddam Hussein had just been captured in Iraq, and Council leaders worried about the timing.
"The Patriot Act is really unpatriotic, it undermines our civil rights and civil liberties," Councilmember Bill Perkins, the bill's sponsor told the Washington Post. "We never give up our rights; that's what makes us Americans."
The Washington Post also talked with Mark Corallo, a Justice Department spokesman, who "dismissed the local governments' resolutions, saying the majority were passed in locales with left-leaning constituencies and based on 'erroneous' information about the Patriot Act." Three states (Alaska, Hawaii, and Vermont) and 250 cities, towns, and counties have passed resolutions defending the Bill of Rights from the Patriot Act.
When he was mayor, Rudy Giuliani lost a series of First Amendment cases, when courts ordered him to back down on threats to yank funding for the Brooklyn Museum due to a piece of art that offended him, and to allow demonstrators to rally in City Hall Plaza despite his contention that it was too big a security risk. But he prevailed in a lesser-known case involving the Ku Klux Klan.
Giuliani invoked an 1845 New York law prohibiting masked gatherings in public places against the Church of the American Knights of the Ku Klux Klan in 1999. Seventeen members of the KKK wore hoods and robes at a rally in Foley Square that October, but had to bare their faces to the 10,000 demonstrators who came out to protest the racist, anti-Semitic, anti-Catholic, and anti-gay group.
When Norman Siegel, then director of the New York Civil Liberties Union, challenged the masks law on behalf of the Klan, he received anonymous death threats, but he was also reportedly supported by Bill Tatum, the African American former publisher of the Amsterdam News, and his wife Susan, who is Jewish, as well as from the Rev. Al Sharpton.
The initial case was heard before United States District Judge Harold Baer, Jr. who granted the Klan a preliminary injunction on the day of the demonstration. As a reporter who had covered many demonstrations where the participants had worn masks, I was called as an expert witness by the civil liberties group but ultimately did not testify when the city's lawyers stipulated to what I had to say. I have seen masks worn in everything from the annual Lesbian and Gay Pride Parade to demonstrations of Iranian dissidents fearful of reprisals. And I had never seen anyone arrested for wearing a mask at a public demonstration.
In fact, said Donna Lieberman, the current executive director of the New York Civil Liberties Union, the last time the law was invoked prior to the Klan case was "in the 1970s against cross-dressing folks in Greenwich Village." The law has been so infrequently enforced, she argued, that almost any use of it amounts to selective enforcement.
Judge Baer's injunction, however, was stayed by the United States Court of Appeals for the Second Circuit. Later in the day, United States Supreme Court Justice Ruth Bader Ginsburg refused to vacate the stay and the Klan members had to rally barefaced.
Three years after the demonstration, however, Judge Baer issued his decision in the case, declaring the statute unconstitutional. "The result of the law," he wrote, "is that a face mask worn to delight the public is lawful while one intended to sway political beliefs is unlawful." He called the wearing of masks "expressive conduct" protected under the First Amendment, in this case expressive of the "horrific ideology" of the KKK. He also noted that some Klan members had not participated in the rally for fear of reprisals and that those that did were subjected to harassment, assault, and subsequent loss of employment. The New York Civil Liberties Union called the decision “a victory for free speech."
The city appealed Baer's decision. The Anti-Defamation League was so concerned by the ruling that they proposed a state bill to ban the wearing of masks to "threaten or intimidate."
Last month, the city won its appeal. The United States Court of Appeals for the Southern District wrote in a 3-0 decision that the original 1845 legislation was "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers" and that the city had used the statute properly. The judges said that while there are numerous cases in which the right to anonymous speech has been upheld, it "has never been held that freedom of association or the right to engage in anonymous speech entails a right to conceal one's appearance in a public demonstration." And they held that in the case of the Klan, "the mask does not communicate any message that the robe and the hood do not."
Beth Haroules, Civil Liberties Union staff attorney, called her clients, the Klan, a "disgusting group," but said the city is engaging in "viewpoint discrimination" and said that they will appeal the case.
Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.
When the United States Justice Department proposed radical changes to the way intelligence was gathered in the wake of the September 11, 2001 terrorist attacks, most of New York City's delegation to Congress agreed to the "USA Patriot Act" (In PDF format) in October 2002. The vote was 98-1 in the Senate, with Senator Russell Feingold (D-WI) dissenting and New York's Senators Chuck Schumer and Hillary Clinton enthusiastically supporting it. Among New York City's fourteen House members, only four voted nay: Democrats Jerry Nadler (West Side), Jose Serrano (Bronx), Nydia Velazquez (Queens) and Major Owens (Brooklyn). Even such notable liberals as Carolyn Maloney (East Side), Anthony Weiner (Brooklyn), Charles Rangel (Harlem), Eliot Engel (Bronx), and Gregory Meeks (Queens) went along with the legislation.
A debate has raged ever since, particularly in New York, about whether civil liberties were deeply and unnecessarily compromised by the Patriot Act or whether the government needs still more extraordinary powers in order to thwart terrorists. Indeed, a more far-reaching Patriot Act II ("the Homeland Security Act") is before Congress now. But Nadler, whose district includes Ground Zero, is working on legislation to modify what he sees as the excesses of the first Patriot Act.
"The Justice Department," Nadler wrote in his most recent newsletter, "changed its rules to allow for listening to attorney-client conversations, undercover surveillance of religious institutions, military tribunals, and the designation of United States citizens as enemy combatants." He also complained about the lack of cooperation from the Department of Justice in answering questions from the House Judiciary Committee and cited a reportfrom the department's Inspector General that found a "'pattern of physical and verbal abuse' of detainees rounded up after September 11th." He not only attacked provisions in the law for "sneak and peak" searches ("of people's homes without notifying them afterwards"), but he voted for an amendment to deny federal funds to be used for such a purpose. It passed this summer 309-111.
The New York Library Association this year passed the Patriot Act Resolutionopposing "the use of governmental authority to infringe upon constitutionally protected privacy by data mining vast amounts of information on people not suspected of any crime, to suppress the free and open exchange of recorded information and knowledge." Their resolution "encourages all librarians, library administrators, and library advocates to inform their communities, staff, and patrons about the ramifications and the dangers of current legislation, including the provisions of the USA Patriot Act, the Homeland Security Act, and other current legislation that threaten patron privacy and the confidentiality of library records."
The post-9/11 legislation has its defenders in New York. "Stop the Cheap Shots at the Patriot Act," wroteformer Mayor Ed Koch and Long Island Republican Congressman Peter King in a New York Post op-ed. Terrorism, they said, "threatens our national survival. Yet, listening to an increasingly shrill chorus of political voices, Americans could almost conclude that the real threat to our country comes not from bin Laden and al Qaeda but John Ashcroft and the Patriot Act." They assert the law is not being abused and quote Democratic Senator Joe Biden as saying that the Department of Justice has "done a pretty good job in terms of implementing" the law. And while they say that the provisions of the law that allow investigators to search library records "has not been used even once," it is "a weapon that must remain in the prosecutor's arsenal." They commend President Bush, whom Koch has endorsed for re-election, and Attorney General Ashcroft "for the superb job they've done over the last two years. Our liberties have been protected and our country has not been attacked."
In December, Judge Emily Jane Goodman wrote in Gotham Gazette's "Law" topic page about the Bill of Rights Defense Campaignthat began this year in New York, mainly sponsored by the New York Civil Liberties Union. On December 2, about 300 stalwarts demonstrated outside City Hall in bitterly cold weather pushing for passage of City Council Resolution 909 from Council Member Bill Perkins (D-Harlem) "calling upon federal, state, and local officials, and upon New York City agencies and institutions to affirm and uphold civil rights and civil liberties." Already passed in three states and 215 communities, it specifically targets the Patriot Act for allowing "the indefinite incarceration of citizens as 'enemy combatants' without access to counsel," opening the door to abuse of electronic surveillance in "ordinary" investigations, giving law enforcement access to medical and financial records with "little if any judicial oversight," instituting an "overbroad" definition of terrorism, and more.
This City Council resolution calls for a lot of changes such as asking the police department to "refrain" from certain practices such as ethnic profiling, but it does not require anything. It was supposed to have been passed in the Council on December 15 after a 7-2 vote of approval in the Government Operations Committee, but Speaker Gifford Miller (D-East Side), who had spoken at the rally in favor of it earlier in the month, did not want the Council's actions to be interpreted as raining on the celebration of the capture of Saddam Hussein the day before in Iraq. Miller and Perkins wrote to the Bill of Rights Campaign promising a full Council vote at the "earliest possible date in the next legislative session."
The question is, why doesn't the council use its powers to make laws to require the kinds of things of the police and others that it is calling for in this resolution? Perkins said that once the resolution passes, "we'll see what we can do legislatively." Also on the substantive front, the New York Library Association is bringing suit against provisions of the Patriot Act that they deem unconstitutional.
The Justice Department is not ready to back down on any of the Patriot Act provisions. Their director of public affairs, Mark Corralo, saidin October, "Those who would seek to repeal or water down the important tools in the Patriot Act would return America to the level of vulnerability to terrorist attack that existed prior September 11, 2001." Nadler said that the Bush administration is now trying to get the things it wants in Patriot Act II into appropriations bills "without having any chance to debate it." He believes that one day, this country will look back in shame over the Patriot Act the way it does at the Espionage Act of 1917, the internment of the Japanese during World War II, and the McCarthy Era during the Cold War.
When those civil liberties restrictions were enacted, there certainly were protests, but not the mass kind that get things reversed. Hundreds of thousands in New York protested the war in Iraq back in February and March, but only a tiny fraction of that number has been on the government's case over the rollback in civil liberties. The New Yorkers most affected by the Patriot Act are immigrants, legal and illegal, many of whom have gotten swept up in the government's use of its new powers and are the least likely to protest their mistreatment.
Jason Helperinof Doctors without Borders wrote in April on Alternet.org of dining in a midtown Indian restaurant with his roommate, Asher, who is of South Asian descent, prior to going to a Broadway show when "all of a sudden, there was a terrible commotion and five NYPD in bulletproof vests stormed down the stairs. They had their guns drawn and were pointing them indiscriminately at the restaurant staff and at us." They were detained by agents of the Immigration and Naturalization Service as well as Homeland Security, denied legal counsel, and told repeatedly, "We are at war." After several hours, they were released and received an apology. Helperin later learned the whole raid had been a "mistake."
Nat Hentoffof the Village Voice, our resident First Amendment absolutist, writes regularly about the ongoing battles over the Patriot Act and the proposals to strengthen it.
The next time these issues are likely to be debated intensely in the mainstream will be when the Republican National Convention comes to town in late August. Many groups have already filed for places to march and rally against the Bush administration. As the president insists that terrorists hate us because they hate our "freedom," it will be a test for the government, right down to the level of the New York Police Department, as to how much freedom will be sustained when security concerns are so heightened.
The Federal Marriage Amendment
This February, Congress will take up the Federal Marriage Amendment to the United States Constitution that proposes to limit marriage and its benefits to man-woman couples. No state currently issues marriage licenses to same-sex couples. When Hawaii looked as if it were going to in 1996, the Congress passed the Defense of Marriage Act barring the federal government from recognizing such unions and allowing the states not to give full faith and credit to such contracts in other states. But the recent ruling from the Massachusetts high court that gay couples are entitled to marry has set off this current push for a constitutional amendment, one that President Bush said he will support "if necessary," which has been interpreted to mean if the courts try to force states outside Massachusetts from recognizing gay marriages performed there.
The Federal Marriage Amendment reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." It's main backers, the Alliance for Marriage, say that it will not prohibit states from recognizing civil unions or the domestic partnerships that gay and straight couples can register for in New York City. But opponents take the phrase "legal incidents thereof" to mean just what it says and warn that passage could overturn the City's law among others. There is also a more conservative coalition of representatives of the religious rights called the Arlington Groupwhich is explicit about pushing an amendment that would ban civil unions and domestic partnerships.
The Massachusetts legislature, for its part, is trying to see if a Vermont-style civil union scheme (all the rights of marriage but not the name) will satisfy the court.
Almost 40 states have passed laws or constitutional amendments prohibiting recognition of gay nuptials. New York has not passed a state version of the Defense of Marriage Act, but its marriage law has been interpreted by the State Department of Health to only permit marriages for heterosexual couples.
For the federal constitutional amendment to be enacted, it must be passed by two-thirds of both houses of Congress and then win votes in three-quarters of the state legislatures. Even many opponents of same-sex marriage such as New York's Senators Hillary Clinton and Chuck Schumer have come out against amending the constitution for this purpose. While the New York Timestrumpeted a story on its front page that support for the amendment is "strong" at 55 percent of the American people, amendments banning flag burning and requiring a balanced budget polled favorably at upwards of 80 percent and have not even gotten past Congress. Lobbyists against the amendment say they can count on 34 Senators to oppose it, but that number could change if it is rewritten to just ban same-sex marriage and not the benefits of marriage to gay couples.
While New Jersey's legislature is enacting limited domestic partners legislation, in part because a same-sex marriage lawsuit is working its way through their courts, the New York legislature is avoiding the issue thus far. Democratic Assembly Speaker Sheldon Silver won't take a stand on the issue. Republic Senate Majority Leader Joe Bruno said gay people don't "need" to get married. And Governor George Pataki reiterated his stand that the state's marriage laws are "fine the way they are." With New York surrounded by states grappling with the issue very intensely, it is not likely that Albany will be able to keep avoiding it for long.
Rep. Jerry Nadler (D-West Side) is sponsoring a piece of legislation that would grant some recognition to gay couples. His Permanent Partners Immigration Act(HR 832) has 119 sponsors. It lets "United States citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States, and for other purposes." It is a long way from passing a Republican Congress, but recognition like this is often the first kind accorded to gay couples in places ranging from Brazil to the United Kingdom.
Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.
As the year comes to an end and a newly-elected (but scarcely changed) City Council is about to take office, a series of civil rights bills that have been kicking around City Hall for a while now are finally getting their first hearings. Council sponsors are expecting action on them either this month or when the new Council is seated in January.
FAIR HOUSING
Mayor Mike Bloomberg introduced a bill, Intro 417, earlier this year in an attempt to make the City's human rights law "substantially equivalent" to the federal Fair Housing Act. The City Commission on Human Rights desired the change because they want, in this era of drastic budget cuts, to make themselves eligible for money from Washington to investigate fair housing cases.
Disability rights groups, including Disabled in Action, Eastern Paralyzed Veterans Association, and the New York Lawyers for the Public Interest, testified at an October hearing before the General Welfare Committee that the proposed legislation would considerably weaken protections for the disabled currently available under the city law. At that hearing, the administration withdrew support for the bill in its current forum.
Craig Gurian, who is now heading the Anti-Discrimination Center of Metro New York, offered an analysis of the problems with 417 (In PDF Format) and a substitute bill(In PDF Format) was drafted that would achieve the administration's goal of "equivalence" without weakening city protections for the disabled. The substitute has yet to be introduced. Gurian was the principal drafter for the Human Rights Commission of the comprehensive 1991 amendments to strengthen the human rights law.
POSTING SUMMARY OF HUMAN RIGHTS LAW IN PUBLIC PLACES
The Human Rights Law Posting Bill, Intro 353, had its first hearing in General Welfare in October and was received favorably, according to civil rights activist Tom Smith who is the prime mover behind the idea of requiring that a summary of the City Human Rights Law be posted in every place of employment, housing, and public accommodation. "I firmly believe that the best way for people to prevent discrimination is for people to understand what their rights are and for employers and landlords to understand what the law is," said Smith. The chief sponsor of the legislation is Councilmember Alan Gerson of Lower Manhattan. Smith is hopeful that the bill will pass before the end of the year or early in 2004.
HOUSING AND DOMESTIC VIOLENCE
A bill that would cover survivors of domestic violence from housing and employment discrimination under the City Human Rights Law, Intro 107, also had its first hearing. The Council in 2001 banned workplace discrimination against domestic partner survivors. Councilmember David Yasskyof Brooklyn, the chief sponsor of the new bill, said that it "would extend coverage to survivors of sex offenses and stalking and grant all three groups further protection against discrimination in housing and public accommodation. Additionally, it would require employers and landlords to make reasonable accommodations for special needs of these survivors."
"Local Civil Rights Restoration Act"
Councilmember Gale Brewer has introduced the Local Civil Rights Restoration Act, Intro 439, that would strengthen the City Human Rights Law by making more allowances for precedent-setting cases, give attorneys more motivation for representing complainants by permitting them to recover fees in administrative cases, and make clear that the category of "marital status" in the law means not just that discrimination against single or married individuals is illegal, but that it is discriminatory to favor a single person over a married couple or vice-versa. The proposed changes were heard before the General Welfare Committee. "The administration doesn't love our bill," Brewer said, "but we're going to plow ahead. I'm working to expand the coalition and hope to pass it early next year."
EQUAL BENEFITS
The Equal Benefits Bill, Intro 271, introduced by Councilmember Christine Quinn of Chelsea, had its first hearing before the Contracts Committee on November 13. It would require those with city contractsof more than $100,000 to treat the domestic partners of their employees the same as the spouses of workers.
Despite anticipated opposition from conservative religious contractors that oppose homosexuality, the only ones to show up to testify against the bill were two representatives of the Bloomberg administration who were unprepared to answer questions from the committee about their legal objections. Terri Matthews of Deputy Mayor Marc Shaw's office testified that "the general municipal law prohibits social policy restrictions on municipal contracting" and that a city charter change would also be required. The counsel to the committee, Rob Newman, challenged both assertions.
The committee also heard from Cynthia Goldstein who administers the 1997 law in San Francisco that was the model for New York's bill. She claimed that the bill did not drive up contracting costs, was agreeable to most religious contractors including the Catholic Archdiocese, and reduced city spending on the uninsured.
Quinn's bill was backed by an 80-group coalition and has 37 sponsors, a veto-proof majority. She expects passage in December. If the mayor vetoes the bill, a promised override vote might have to wait until January.
HOW WILL THE SAME-SEX MARRIAGE DEBATE PLAY OUT IN NEW YORK?
The decisionof the Supreme Judicial Court of Massachusetts to open marriage to same-sex couples has once again put the spotlight on New York State's political leaders as to how they will address the issue here. Few are tipping their hands.
Same-sex couples have already returned from neighboring Vermont with civil unions and Ontario with marriage licenses and are slowly gaining recognition of their bonds from their local governments, employers, and others, but Massachusetts will actually be the first state in this country to issue marriage licenses to gay and lesbian couples. Their court has given the Massachusetts state legislature until May 2004 to implement the order. This is when, lawyers for the plaintiffs say, the state must have begun letting same-sex couples marry. Massachusetts Governor Mitt Romney and legislative leaders in the state are trying to comply with the order by developing a civil union plan like Vermont's, but the court is not expected to accept anything less than full marriage rights.
New York is one of thirteen states that has not passed a law banning recognition of same-sex marriages from other jurisdictions. The federal government enacted the Defense of Marriage Act in 1996 in anticipation of Hawaii opening marriage to gay couples (even though the state ultimately never did), banning federal recognition of same-sex marriage and allowing the states an exemption from the full faith and credit clause of the constitution if they didn't want to honor gay marriages performed in other states. Thirty-seven states have done so.
There has been a state Defense of Marriage Act in Albany since 1996 and neither house of the legislature has acted to pass it into law. A bill to end sex discrimination in marriage was first introduced in the State Senate in 1999 and in the Assembly in 2002. Again, no action in either house.
Most same-sex partner recognition in New York State has come through the courts, with the state's Court of Appeals allowing two-parent adoptions for same-sex couples and succession rights in rent regulated apartments as early as the 1980s.
Governor Mario Cuomo extended domestic partner benefits to state employees in the early 1990s and Governor George Pataki, while publicly opposed to same-sex marriage, continued that program and has been allowing incremental gay partner rights since, especially after 9/11. The state's Crime Victims Board now recognizes same-sex partners when compensating victims of violent crime.
No same-sex married couple from Canada has started a court case for recognition in New York, but a Nassau man with a civil union is suing St. Vincent's hospital in Manhattan for the wrongful death of his "spouse," a word the Nassau County judge in the caseaccepted in granting him standing to sue earlier this year.
In the wake of the Massachusetts developments, Pataki is sticking with a statement that he is "comfortable" with the way the marriage laws in New York are. Senate Majority Leader Joe Bruno, an upstate Republican, said, "I don't believe people of the same sex need or ought to be legalized in marriage," though he has not vowed legislative action to prevent it. And Assembly Speaker Sheldon Silver (D-Lower East Side) has remained mum on what his chamber will do to address the issue and refuses to state his own position on same-sex marriage, despite a recent resolution by the state Democratic Party endorsing it.
New York City has gone about as far as it can go in granting partner rights to gay couples, save for the contractors' bill described above. Mayor Ed Koch was the first to extend hospital visitation rights and bereavement leave to domestic partners in 1989. Mayor David Dinkins established a domestic partners registryand settled a case granting all city employees equal benefits for their domestic partners in 1993. (More than 72 percent of the city's registered domestic partners are in heterosexual couples.) Mayor Rudy Giuliani codified that settlement into law in 1998. And Mayor Mike Bloomberg signed into law a 2002 Council bill whereby the city recognizes domestic partnerships, civil unions, and same-sex marriages performed elsewhere. Council Speaker Gifford Miller (D-East Side) greeted the Massachusetts decision on same-sex marriage with a press conference supporting it.
Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.