law – UAB Institute for Human Rights Blog

A Brief Judicial History of Religious Freedom

The first line of the first amendment in the Constitution of the United States, also known as the Establishment clause, asserts that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This clause, although seemingly simple in nature, has been the root of many judicial battles throughout the United States’ history. Religion, as a human right, has always been a topic of political debate.

One might inquire as to why this is the case: what makes the freedom of religion such a sensitive topic? In this blog, I seek to answer this question by outlining fundamental cases which have shaped how our legislators interpret our right to religion. Moreover, this blog shall conclude with how our fundamental right to religion is being interpreted today, as well as what is potentially in store for religious interpretation in the future.

Lemon v. Kurtzman (1971) | Introduction of the Lemon Test

US constitution — (source: yahoo images)

Our journey begins in 1971, with the landmark Supreme Court Case of Lemon v. Kurtzman which involved the states of Pennsylvania and Rhode Island. The issue materialized when both of the aforementioned states decided to introduce legislation that would use taxpayer money to fund church-affiliated schools. In doing so, the government funds would pay for teacher salaries, textbook costs, and many other educational materials. Funding church-affiliated schools could be construed as a violation of the Establishment Clause. The Supreme Court followed this logic, and with an 8-1 ruling, they decided to strike down the legislation passed by Rhode Island and Pennsylvania, no longer allowing state funds to go to church-affiliated schools.

What is particularly remarkable about this case is that it formally introduced the so-called Lemon Test, a judicial test constructed to see if legislation defies the Establishment Clause. The Lemon Test has three ways to test and see if a piece of legislation defies the clause:

The piece of legislation must have a secular purpose;
The piece of legislation must not advance or prohibit the practice of religion;
The piece of legislation must not force the government into “excessive entanglement” with religious affairs.

If a piece of legislation passes the Lemon Test, then it does not defy the Establishment Clause and can proceed to further scrutiny. That is, the legislation will be evaluated to see if aligns with the other amendments. With these three prongs noted, one can see how easily Lemon v. Kurtzman would have failed the Lemon Test.

Wallace v. Jaffree (1985) | Application of the Lemon Test

Wallace v. Jaffree, a case that took place in the state of Alabama, is another landmark Supreme Court case involving a dispute in legislation around religion. In 1981, Alabama decided to introduce legislation that mandated a 1-minute moment of silence at the start of class in all public schools. Although, ostensibly, the legislators claimed that this moment of silence could be used either for reflection or prayers, the legislation’s intent was to create an opportunity for students to pray before school started.

This decision naturally upset many non-religious parents, and multiple lawsuits soon followed, climbing their way up all the way to the Supreme Court. Throughout this process, the Alabama legislators argued that this bill does not defy the Establishment Clause, as the moment of silence can be used in any way that pleases the student— not necessarily just for prayer. However, the fault in this is that the introduction of the bill was done to allow students to pray, not to give them a moment of silence; thus, this bill failed the Lemon Test’s first prong as it did not have a secular purpose. In a vote of 6-3, the Supreme Court held that the bill defies the Establishment Clause.

Oregon v. Smith (1990) | Introduction of RFRA

street signs saying church and state — (source: yahoo images)

This case, unlike the aforementioned ones, has a bit more nuance to it and led to a wide range of implications. This case is the primary reason Congress enacted the Religious Freedom Restoration Act in 1993, which is one of the most bipartisan pieces of legislation, having passed the House unanimously and the Senate 97-3.

In Oregon v. Smith, two people, who both worked at a drug rehabilitation center, were fired due to having consumed peyote, a hallucinogenic drug. The issue at hand, however, is that their consumption of peyote was done during a sacred religious practice. This case did not make it to the Supreme Court because the drug rehabilitation center fired them (as the center very much can fire whoever they please — they are a private entity); it made it to the Supreme Court because after they were fired, these two individuals sought unemployment benefits and were denied due to being fired for consuming drugs, which is considered “workplace misconduct.”

However, unlike the previous cases, the Supreme Court did not rule in favor of the appellants. The Court, by a 6-3 vote, ruled that since the denial of unemployment benefits due to workplace misconduct is a rule of general application (meaning it does not specifically target any people or religious practice), it is constitutional.

However, as one might conclude, many did not like this outcome. Therefore, as aforementioned, Congress enacted the Religious Freedom Restoration Act (RFRA) to clarify some of the issues raised by Oregon v. Smith. The first clause of RFRA states its purpose, saying that it aims to prohibit “any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.”

This first clause seeks to prohibit exactly what was the outcome in Oregon v. Smith, but it also comes with some limitations. That is, Congress is free to burden one’s exercise of religion if (1) doing so will further a compelling government interest; and, (2) doing so is the least restrictive means of furthering that compelling government interest. The introduction of this incredibly bipartisan bill, as we will shortly explore, has some interesting implications.

Burwell v. Hobby Lobby (2014) | Application of RFRA

In the case of Burwell v. Hobby Lobby, we see the RFRA being put to use which leads to an interesting implication from the outcome of this case. Burwell v. Hobby Lobby sprouted from one of the requirements of the Affordable Care Act (ACA), namely, that all nonexempt employers are legally required to offer their employees health coverage and benefits, including contraceptives, some of which stop an egg from fertilizing. Before progressing with the case, we ought to make note that some employers, primarily religious institutions such as churches, are exempt from the ACA.

Hobby Lobby, a crafts company, is a tightly-owned company, meaning that there are only a few number of people who own the company. All of these owners, moreover, do not want to comply with the ACA since they believe life begins at conception and to thereby provide their employees with free contraceptives would go against their religious beliefs. However, if a company does not comply with the ACA, it would have to pay a fee per employee. For Hobby Lobby, the total cost would amount to about $475 million per year.

Hobby Lobby was conflicted about whether they should go against their religious beliefs and supply their employees with contraceptives or instead pay $475 million a year and adhere to their religious stance. Due to this ethical dilemma, Hobby Lobby decided to sue the Department of Human Health Services (those who implemented the ADA), and the case made its way up to the Supreme Court. Hobby Lobby cited RFRA, stating that the ACA mandate does not comply with RFRA’s second clause. They argued that forcing Hobby Lobby to offer its employees contraceptives is not the least restrictive means of furthering a compelling government decision. Rather, Hobby Lobby stated that they, like religious institutions, should be exempt from the ACA, as that is the least restrictive means of furthering a compelling government interest (health care for employees). The employees of companies who are exempt from the ACA have their health care paid for by taxes.

The Supreme Court agreed with Hobby Lobby. By a vote of 5-4, the Supreme Court ruled that Hobby Lobby is correct—the least restrictive means indeed is making Hobby Lobby an exempt company, thereby allowing governmental taxes to pay for the health care of their employees.

What is remarkable about this case is its implication that the Supreme Court stated that the best course of action to resolve a religious dispute over health care is to simply allow the government to fund health care. One might argue, then, that the Supreme Court is hinting toward universal health care, as they view that as the least restrictive means.

Kennedy v. Bremerton School District (2022) | Abandonment of the Lemon Test

The last case we shall discuss is one that has been all over the media recently: Kennedy v. Bremerton School District. In this case, a high school football coach decided to kneel and pray before and after games. The school district feared that his actions would violate the Establishment Clause, so they asked him to stop. When he did not, they fired him.

Claiming his first amendment right to the freedom of religion was violated, he sued the school. The lawsuit eventually made its way up to the Supreme Court, and, by a 6-3 vote, the Court ruled in the coach’s favor, stating that he was not complicit in praying since he did it during post-game periods when people were free to do as they pleased.

However, something remarkable also happened in this case: the Supreme Court decided to stop using the Lemon Test, which has been in practice since 1971. Instead of the Lemon Test, the Court stated that they will decide disputes over the Establishment Clause by “accor[ding] with [what] histor[ically] and faithfully reflec[ts] the understanding of the Founding Fathers.”

What this means, we do not yet know, as this is yet another new change by the Supreme Court. Throughout history, the Lemon Test has proved itself to be a great way of settling legislative disputes, so one could only wonder why the Supreme Court decided against it.

Summary

US Capitol Building — (source: yahoo images)

As I showed with this blog post, cases revolving around religious freedom are by no means simple, but the courts, thankfully, have historically always ruled in favor of the Establishment Clause, never seeking to subdue religious freedom.

However, after the abandonment of the Lemon Test in Kennedy v. Bremerton School District, it is clear that the Supreme Court is planning on interpreting the Establishment Clause differently than they have had since 1971. What this means for upcoming cases, we have yet to find out. However, what we do know is that religious freedom, despite how tricky it might be at times, should remain a human right.

Yeshiva University vs. Pride Alliance Group

Yeshiva University Wilf Campus — Yeshiva University’s Wilf Campus (source: yahoo images)

On Friday, September 16th, 2022, in response to a court’s ruling that the university cannot block the formation of a LGBTQIA+ group, New York’s Yeshiva University decided to temporarily suspend all undergraduate student activities and clubs. Yeshiva claims that permitting the formation of a LGBTQ+ student organization would be “inconsistent with the school’s Torah values and the religious environment it seeks to maintain.”

How It Started

Pride Parade NYC 2011 — 2011 Pride Parade in NYC (source: yahoo images)

The LGBTQ+ group in question is Yeshiva’s Pride Alliance, which was unofficially created in 2018. They were unofficial in the sense that their support was low and their group size was small— as all student groups are in the beginning. The student group describes itself as a supportive space for all students, regardless of sexual orientation and gender, with the goal of allowing all members to feel secure, respected, and represented at Yeshiva.

It is understandable that one of the group’s goals was representation. In the modern day, it is extremely unlikely to find any major university without an instituted pride alliance group. Therefore, Yeshiva’s Pride Alliance group wanting that same, basic characteristic—of representation—should not come as a surprise.

However, when they approached the university last year to ask if they could get officially recognized as a student group, they were instantly denied. In response, however, they remained determined, and proceeded to sue the school for discrimination on the basis of sexual orientation.

The Legal Claims

NYC CIty Court — New York City Court (source: yahoo images)

The Pride Alliance group sued Yeshiva for breaking the New York City Human Rights Law, a law code prohibiting discrimination on a basis of gender, race, sexual orientation, and other classifications.

In response to the lawsuit, Yeshiva University, which identifies itself as an Orthodox Jewish university, claimed that they could not recognize the group because it “conflicted with the school’s interpretation of the Torah.”

The lawsuit first went to a court in New York, where it was concluded that the university must officially recognize the group. The court argued that Yeshiva was not a religious institution (which would thereby make it immune to New York City’s Human Rights Law), but an educational institution.

Yeshiva disagreed and appealed to the Supreme Court. At first, the Supreme Court told Yeshiva to ignore the prior ruling, and that the Justices will be the ones to declare what rights LGBTQ+ groups have in universities.

However, that standing changed rather quickly. Just earlier this week, by a 5-4 vote, the Supreme Court told Yeshiva that they should follow the prior court’s ruling because they have not exhausted all their options before appealing to the Supreme Court. In other words, the Supreme Court voted to send Yeshiva’s appeal back to local courts; they did not rule that Yeshiva acted unconstitutionally.

Yeshiva’s Next Step

Empty Campus — An empty campus (source: yahoo images)

After Yeshiva was notified that they should follow the prior ruling (meaning that they must officially recognize an LGBTQ+ student group), they concluded that their only option was to shut down all undergraduate activities and clubs.

Enforcing such drastic measures upon the entire undergraduate population, as one might assume, was an unprecedented move on Yeshiva’s end. Many might infer that this action could have been done in an attempt to mask discrimination. Is it truly discriminatory to not recognize a pride alliance group when also not recognizing any other groups at all? Most would say it is not. That, from what we can assume, is what Yeshiva wants until the legal proceedings sort out: put forth a blanket disapproval of all student groups so they cannot be faulted for targeting an LGBTQ+ one.

Yeshiva’s measures have caused many to view the university as homophobic; however, the president of the university, Rabbi Ari Berman, was quick to demobilize those allegations, stating that “[Yeshiva University’s] commitment and love for our LGBTQ students are unshakeable.”

However unshakable Yeshiva’s love for LGBTQ+ students might be, we have yet to see. We must not overlook what we have seen—it merely took a pride alliance group to ask for recognition to rid the entire university of all its undergraduate activities and clubs.

What’s to Come

As Yeshiva returns back to local courts we are unsure of what will happen in the future—except that it will not be filled with any undergraduate activities. If Yeshiva’s appeal succeeds and the city’s ruling is overturned, then the LGBTQ+ group will not be able to get recognized by the school. If the ruling does not get overturned, Yeshiva could appeal their way back up to the Supreme Court.

However, even if this were to happen, precedence seems to be against the LGBTQ+ group. In prior cases, the Supreme Court has sided consistently with religious universities when discussing issues of religious freedoms (i.e. what a religious university can and cannot do).

Moreover, one of the dissenting members of the initial Supreme Court vote, Samuel Alito, stated, “[Does the First Amendment] permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no.’”

In other words, Justice Alito is stating that in his opinion, states should not have the authority to tell religious schools what to do if it does not align with their religious understandings.

With all of this in mind, one could reasonably come to the conclusion that the future of Yeshiva University’s Pride Alliance group is dependent on whether or not the initial city court was correct in deeming Yeshiva a state institution and not a religious one.

If the city court was incorrect, Yeshiva could inherit the authority to deny recognition to a group seeking representation—even though, allegedly, their commitment and support for LGBTQ+ persons is “unshakable.” If the city court was correct, representation and recognition of those underrepresented shall prevail.

LGBTQ+ Rights

pride flags — Pride flags (source: yahoo images)

The events that unfolded between Yeshiva and its pride alliance group returned a variety of different topics to the forefront of the media. One of which, in particular, is the topic of LGBTQ+ persons and the rights they have.

Discrimination against LGBTQ+ persons has been an ongoing issue for hundreds of years. For years, The United Nations has repeatedly stated that “discrimination against LGBTI people undermines the human rights principles outlined in the Universal Declaration of Human Rights. Yet discrimination and violence against people in the LGBTI community are all too common. Homophobic, biphobic and transphobic attitudes remain deeply embedded in many cultures around the world.”

The Universal Declaration of Human Rights was published in 1948. 74 years ago. Not only does discrimination still exist, but same-sex marriage, in 2022, is only legal in 24 countries.

With Yeshiva University’s recent decision, we are seeing the global issue of same-sex marriage and LGBTQ+ rights back in mainstream media. Equality and respect for all people should be the standard that we live by.

Despite all that has occurred, Yeshiva could bring forth new lessons for us all. Maybe, (or perhaps hopefully), one of those lessons could be that we, as a society, should strive to make discrimination of all people a thing of the past—make it history, so we can learn from it.

LGBTQ+ Rights in Brazil

You look around at the passing people, from old women and working mothers to teachers and police, any of them could want you dead. This is the unfortunate reality facing many LGBTQ+ people in Brazil, the world’s most dangerous country for trans and Queer people. With a stark rise in conservatism driving discriminatory legislation and a president that has publicly vilified “gender ideology” and Queer persons, the rights of LGBTQ+ people are threatened by institutions and public support of hateful rhetoric and discriminatory laws.

The political climate fostering LGBTQ+ hate

The current president of Brazil is Jair Bolsonaro, who began his term on January 1, 2019. Bolsonaro is seen as a polarizing figure both within Brazil and by the international community for his disparaging comments against women, people of color, and LGBTQ+ individuals. A far-right figure, Bolsonaro claimed in a 2011 interview with Play Boy that he would rather have a dead son than a gay one.

Figure 2: Source: Yahoo Images; An image of President Jair Bolsonaro. Shoulder to head image of a white male wearing a black suit looking towards the top right corner.

After the election of Jair Bolsonaro, Brazil’s second openly gay congress member Jean Wyllys left their position and fled the country due to the increased level of violence against LGBTQ+ people and the number of death threats received. “It was not Bolsonaro’s election itself. It was the level of violence that has increased since he was elected,” Wyllys told local newspapers. Bolsonaro has been clear about how his convictions motivate his discriminatory rhetoric that disparages LGBTQ+ people, and his election and widespread public support have also translated to widespread violence.

Bolsonaro represents a rise in conservatism further supported by a significant growth in Evangelism in Brazil over the last decade. Despite being the world’s largest Catholic country, Evangelical churches have been increasing, and now approximately one-third of Brazil’s population is Evangelical. John Otis, a reporter for the National Public Radio, found that “Evangelicals now make up 31% of Brazil’s population, according to the Datafolha polling firm. They’re still outnumbered by Catholics, who make up 51%. But evangelicals are growing at a much faster clip. They’re also more politically active than Catholics.”

Evangelism is an umbrella term for Protestant denominations that emphasize the Bible as the ultimate source of morality and history and a desire to evangelize, or spread their faith. Evangelicals tend to be more conservative and opposed to more progressive values. The concern between the rise in evangelism and subsequent conservatism in Brazil is that these joint forces signal an erosion of secularism and democracy in Brazil.

On his inauguration day, Bolsonaro said, “We will unite people, value the family, respect religions and our Judeo-Christian tradition, combat gender ideology and rescue our values.” On December 1, 2021, the Brazilian senate approved the appointment of Evangelical lawyer and pastor André Mendonça to a position on the Supreme Court. This is a signal of the key role evangelists play in the political climate of Brazil today with positions on the highest court in the nation and executive office.

LGBTQ+ experiences

Foremost, sexuality and gender identities are a focus of discriminatory laws and practices in a lot of states, but trans and Queer people are also the victims of torture, violence, and death.

The highest rates of transpeople and gender non-conforming people killed are concentrated in Central and South America. Most prominently, Brazil has the largest number of trans and Queer people killed in the world, and in 2021, Brazil maintained this position for the 13th consecutive year.

The violence and deaths of LGBTQ+ individuals are in direct contradiction with the right to life and safety guaranteed to all people. Additionally, LGBTQ+ people face more barriers to healthcare access, and discrimination is conflated by additional minority identities such as being a person of color. Trans persons are particularly vulnerable to exposure to violence due to name and sex details in official documents.

As a result of the violence, LGBTQ+ people have been responding by taking defense and martial arts classes. In large cities such as Sao Paulo, Porto Alegre, and Rio, defense courses are being offered to Queer people who increasingly doubt Brazil’s institutions will protect them. Carlos Renan dos Santos Evaldt, a banker and president of a gay sports club in Porto Alegre, was spurred to offer jujitsu classes not just to ensure personal safety, but “rights achieved through hard work and at the cost of many lives and years.”

Figure 3: Source: Yahoo Images; An image of people learning jujitsu. A group of four or five white men sitting on a blue mat being instructed by a black man in jujitsu.

Since 2014, there has been a growing passage of legislation, approximately 200 bills, at all levels targeting “indoctrination” and “gender ideology.” Bolsonaro’s Minister of Women, Family, and Human Rights, Damares Alves, an evangelical pastor said on her first day, “Girls will be princesses, and boys will be princes. There will be no more ideological indoctrination of children and teenagers in Brazil.”

In 2011, the UN Human Rights Council passed a resolution affirming LGBTQ+ rights as human rights due to the discrimination and violence levied against this minority community. Alves’ promotion of anti-LGBTQ+ speech disparages the identities of all people, and moreover, signals a failure from the ministry with an objective in human rights to combat rhetoric against Queer persons. Brazil is a current member of the Human Rights Council and therefore has an obligation to promote human rights for all.

Brazil requires comprehensive sexuality education (CSE); however, attempts to reduce or eliminate teaching about gender and sexual orientation represent a threat to the right to education, information, and health. These bills represent a process of silencing rather than honoring the diversity of individuals.

Successes in face of growing anti-LGBTQ+ sentiments

While there is still a long way to go in addressing the human rights violations trans and Queer people face in Brazil, there have been successes in the face of growing hate and violence. As previously mentioned, trans people face additional threats due to names and assigned sex at birth listed on official documents. In 2018, Brazil’s Supreme Court ruled that the government could no longer require individuals seeking a name or gender identifier change on official documents to undergo medical procedures or judicial review. Previously, transgender people had to undergo mandatory psychiatric evaluations, medical transitions, or obtain a judicial order. This represents a major step to ensuring the safety and validating the identity of all people. This is a confirmation of the right of a person to self-determination and a denial of any government to decide for a person who they are.

In June 2019, the Supreme Court furthered its protection of LGBTQ+ people by criminalizing homophobia and transphobia. Under the law, homophobia and transphobia would be treated the same way as racism. In May 2020, the Supreme Court struck down a federal ban on blood donations from men who had sexual relations with men.

Also, in 2020, the Supreme Court struck down a number of bills that aimed to censor “gender ideology” and sexuality in CSE programs. These cases established that municipalities could not override national education plans, and in these specific cases, changes represented a violation of the right to equality and education. And in April 2022, the Supreme Court affirmed that the “Maria da Penha” law against domestic violence applied to transgender women.

In spite of political attempts to limit or deny the rights of LGBTQ+ people, there are institutions that still protect these human rights. As of this October, Brazil will hold its presidential election between incumbent Jair Bolsonaro and former president Luiz Inacio Lula da Silva, who is leading in the polls. As Brazilians celebrated Pride month this year with the first in-person parade in two years they did so under the slogan “vote with pride, for policies that represent us.”

The Human Rights Campaign has partnered with Instituto de Políticas Públicas LGBT and Instituto Mais Diversidade in order to promote and develop more inclusive LGBTQ+ employment practices in Brazil and Argentina. By creating more accepting workplaces for Queer people, more inclusion can be fostered across all aspects of life in Brazil.

To get involved, you can support the Human Rights Campaign by donating so these programs can continue to combat discrimination against LGBTQ+ people. Also, by creating dialogues in your own workplaces on LGBTQ+ inclusion, human rights in corporations will continue to be a standard of practice ensuring equality and equity on all levels, local to international.

The Right to Vote And The 2022 Midterms

Though the right to vote was codified as a fundamental human right in Article 21 of the Universal Declaration of Human Rights in the 20th century, voting has been a cornerstone of American democracy since the nation’s founding in 1776 (though it took a while to realize this right for everyone). In order to call itself a representative democracy, the United States must represent its citizens through laws and elected officials, which is executed through free and fair elections with equal access to participating in the voting process. In this article, we will be covering the importance of ensuring voter accessibility, some upcoming voter issues from a human rights standpoint, and, of course, how your vote matters!

Please scroll to the end of this article for information on voter registration, aid in accessing the polls, remote voting options, and how to find your local candidates and docket items.

What are Midterms?

Midterm elections are held in the middle of Presidential terms. In midterm elections, eligible citizens vote for the House and Senate candidates that, if elected, shape national laws and policies. The 2022 midterm elections take place this year on Tuesday, November 8, 2022, and will have a major impact on citizens’ rights on both the state and national level. These elections determine which political party will hold the majority in the houses of Congress for the next two years, which can affect everything from the federal budget to national and international policy. Check the current midterms forecast here to see how the House, Senate, and your state elections are predicted to go.

Each Vote Matters

The most common response I receive when asking why my peers choose not to vote is the thought that, “one vote cannot make a difference”. History disagrees. The 2020 presidential election saw a record voter turnout, with nearly two thirds of all eligible voters (158.4 million people) showing up to the polls. However, midterm elections historically have 10-20% lower voter turnout than presidential elections. For example, the 2018 midterm elections only saw 113 million votes, which is roughly 53% of the eligible voter population; and that was still the highest voter turnout for a midterm election in four decades with a historic average of roughly 40%. That means the elected officials who vote on crucial national policies like minimum wage, education, housing and healthcare are only representative of less than half of Americas eligible voters.

In addition, following the Supreme Court’s decision of Dobbs vs Jackson in June 2022, we have seen a large change in voter demographics as historically conservative states like Kansas, Ohio and Alaska observe spikes in young, female voters and Democrat registrations. On September 13, 2022, Democrat Mary Peltola was sworn in as the first Alaskan Native to be elected as an Alaskan representative in Congress. States that have been dependably Republican for decades are now facing a new population of politically active citizens flocking to all forms of civil engagement in order to change their states, for the present and the future.

The Voter Issues

As we get closer to the midterm elections, it is important that we recognize both the dangers and the potential solutions that could be determined by the vote this upcoming November. Below you will find some of the largest human rights realms that will be affected by the outcome of the midterms.

Voter Issue: Abortion Rights

In the wake of Dobbs v Jackson, the right to elective abortions has become a prioritized and contentious voting issue for the 2022 midterms. Currently, 26 states are likely, planning to, or have already restricted access to elective abortions following Dobbs. The Pew Charitable Trusts used recent data to create the map below:

For the first time in five decades, local and state representatives will now determine whether women and people who can get pregnant in your state will have access to what was considered a nationally protected right under Roe v Wade. Beyond the simple matter of legal access, those elected to your state governments have the ability to further restrict or protect the right to abortion in your state. On the national level, those elected to Congress this November will be voting on policies like the Women’s Health Protection Act; a piece of federal legislature that would protect abortion access nationwide.

While we are still two months away from elections, there are many signals that abortion will be one of the largest voter issues this election season. The very demographic of voter registrations has shifted following the Dobbs decision in June, with a rise in female, young, and Democrat voter registrations nationwide. In Kansas, a state with a long history of voting red (56% of Kansas voters cast their ballots for Donald Trump in 2020), an anti-abortion referendum was struck down by 59% of votes. This is the first time since Dobbs was decided that restrictive abortion legislation was struck down by voters. It was also a clear display of voter participation shifting the partisan norm as a deeply conservative state was met at the polls by voters, impassioned with protecting reproductive rights.

Source: “Vote Earth Tree” by Earth Hour Global is licensed under CC BY-NC-SA 2.0.

Voter Issue: Climate Change

The United Nations passed a resolution in July of 2022 that declares a clean, healthy environment is a universal human right. In addition, the recently passed Inflation Reduction Act plans to tackle both economic and environmental issues by majorly investing in clean energy production and creating jobs in the industry. Unsurprisingly, the Pew Research Center found that energy policy and climate change are two predominant issues voters will consider when casting their votes in November.

Source: Valeriya via Getty Images/iStockphoto

Voter Issue: Healthcare

The right to health is an inclusive right, defined by the United Nations as encompassing accessibility, quality, and availability amongst other qualities. While the aforementioned Inflation Reduction Act plans to lower drug costs for Medicare recipients, America still stands alone as the only developed nation in the world that does not have Universal Healthcare.

With chronic, severe or uncommon conditions, constant full-time employment may be the only way to gain affordable insurance that provides access to vital drugs and treatments. Insulin and Epi-Pens are two life-saving essential drugs that American citizens experience being denied access to because they cannot afford out of pocket costs. A simple ambulance ride can cost upwards of $1,200, an amount many Americans could not pay without incurring debt. With bankruptcy and extreme medical woes being legitimate fears for American citizens without health insurance, it is easy to see why 60% of voters say that healthcare policy is very important to their vote in the midterm elections.

Voter Accessibility And Suppression

Voter suppression, whether passive or active, is a real issue in 2022. It is crucial that we recognize the ways in which voter accessibility is inhibited, especially in the discussion of voter turnout and how that affects who is truly represented in the US Government. Lack of accessibility and excessive voter registration requirements are detrimental to our voter turnout, and contribute to feelings of helplessness and voter apathy.

One of the largest inhibitors of active voters is pure accessibility. The US Justice Department states that, “Title II of the ADA requires state and local governments… ensure that people with disabilities have a full and equal opportunity to vote. The ADA’s provisions apply to all aspects of voting”. While some cite mail-in voting as a solution to physically inaccessible polling locations, the DOJ continues to specify that, “Any alternative method of voting must offer voters with disabilities an equally effective opportunity to cast their votes in person,” meaning that simply offering a mail-in vote option is not just insufficient; it is illegal. Despite this, the American Bar Association has found that “persons with disabilities made up one-sixth of eligible voters in the 2016 election, yet only 40 percent of polling places were accessible.” Both persons with disabilities and the older population are greatly impacted by this lack of accessibility.

While accessibility at physical voting locations is a major issue, the voter process begins with voter registration; a procedure that can be incredibly inhibiting. Voter ID requirements are one of the primary obstructions across the board when citizens attempt to register to vote. Burdensome voter identification restrictions are explained as necessary security measures, but their policy outcome is that citizens who are eligible to vote are unable to due to the expensive and time-consuming process necessary to obtain government IDs. While the average percent of eligible voters who lack a government-issued photo ID is roughly 11% per the Brennan Center’s research, that amount is significantly higher amongst minority groups, low-income people (15%), young voters 18-24 (18%) and old voters 64 or above (18%). The highest category though is African-American citizens, who reported a staggering 25% of voting-age citizens without eligible IDs. In a nation with a history of civil rights abuses, institutional racism and voter suppression, modern voter ID laws must be re-evaluated in order to uphold the integrity of the electoral system in America.

Additional voter restriction issues include lack of public transportation to polling sites, deceptive practices, racial and partisan gerrymandering, employers not providing time off, long lines, prolific jailed, previously jailed and ex-felon disenfranchisement. A representative democracy must represent its people, and to do that its people must be able to vote.

Resources:

Please click HERE to register to vote. If you are interested in absentee or mail in voting options, please check out this page where you can speak to an agent if you have any additional questions!
VoteRiders is an amazing nonprofit that helps voters to obtain their necessary documentations, and can help provide rides to the DMV to obtain photo IDs and rides to the polls through their volunteer service! Their organization will also cover any fees necessary in the ID process, so please check them out if their resources would be helpful to you or if you are interested in volunteering with them! You can also reach their help line at 888-338-8743
Rock the Vote provides helpful information on voting in your state, walks you through the registration process and provides helpful reminders for upcoming voter deadlines!
To learn more about voter suppression or to join the fight against voter ID restrictions and voter suppression nationwide, please check out the ACLU and the Brennan Center today!
Find the forecast for your State’s midterm election results here

Providing Equal Justice for All

By Pamela Zuber

“We have to reform a system of criminal justice that continues to treat people better if they are rich and guilty than if they are poor and innocent.” – Bryan Stevenson, founder of Equal Justice Initiative and author of Just Mercy

Inside of a jail, a dark hallway with green jail cells on either side — Source: Pixabay

Money can’t buy happiness, but does it buy justice? Or, more accurately, does it help people avoid justice? Does money provide unfair advantages?

Athlete and actor O. J. Simpson famously assembled a team of some of the most prominent lawyers in the United States to defend him after he was accused of killing his ex-wife and her friend. Dubbed a legal dream team, these defenders helped Simpson win acquittal on criminal charges in 1995, although he was convicted of civil charges in 1997.

Wealthy financier Jeffrey Epstein could have been convicted of federal sex crimes involving teenagers in 2008 but pleaded guilty to lesser charges in a Florida state court. During his sentence, he was allowed to leave prison for up to twelve hours every day for six days a week. Epstein also had private security and his own psychologist while staying in a private wing of a Miami prison.

After serving thirteen months, Epstein traveled frequently to New York and the Virgin Islands while he was on probation. Epstein committed suicide in prison in August 2019 while awaiting trial on charges of sex trafficking and conspiracy to commit sex trafficking. The trafficking trial continued after his death.

Did Simpson and Epstein’s money, power, and connections help them avoid justice? If so, what does that mean for the average person and can we do anything to change it?

Understanding poverty and imprisonment

“In all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.”
– Sixth Amendment of the United States Constitution

“If you cannot afford a lawyer, one will be provided for you.”
– Description of Miranda warnings issued to suspects

According to the U.S. Constitution and the 1966 U.S. Supreme Court ruling Miranda v. Arizona, people accused of crimes have the right to obtain an attorney for their defense. Wealthier people have the financial resources and social connections that allow them to hire experienced private attorneys. If people cannot afford such legal assistance, they may defend themselves or receive the help of court-appointed attorneys.

Although court-appointed attorneys are sorely needed, the system that employs them has experienced major problems. According to the Equal Justice Initiative, “[p]oor people in most jurisdictions do not get adequate legal representation. Only 24 states have public defender systems, and even the best of those are hampered by lack of funding and crippling case loads.”

Even if they secure representation at trials, poor people often cannot afford attorneys to represent them at appeals and other legal system procedures. Well-heeled suspects, meanwhile, can often better afford experienced representation throughout the judicial process and other benefits of such representation.

“People in prison and jail are disproportionately poor compared to the overall U.S. population,” noted the Prison Policy Initiative. “Poverty is not only a predictor of incarceration; it is also frequently the outcome, as a criminal record and time spent in prison destroys wealth, creates debt, and decimates job opportunities.” Even after poor people leave prison, their punishment continues. Poor people who are convicted of crimes often find it difficult to find jobs, housing, and other opportunities after they serve their sentences.

Much of this prosecution and imprisonment relates to drugs. “Over 1.6 million people are arrested, prosecuted, incarcerated, placed under criminal justice supervision and/or deported each year on a drug law violation,” reported the Drug Policy Alliance.

While some people turn to selling drugs when they feel they have few other economic opportunities, that is not the case for many people arrested for drug violations. People may face severe penalties just for possessing drugs for their own personal use. If they’re poor, they’re less likely to have access to effective addiction treatment, so they have a greater chance of staying addicted. There is a greater likelihood that the police will catch them with drugs in their possession.

Once arrested, poor people face medical and psychological problems relating to their addiction. They face criminal and financial problems due to their arrest, incarceration, defense, and trial. Such problems often make poor people even poorer.

Making the legal system fairer

Some areas are looking for ways to make justice fair for all, not just the more financially secure. Writing for the Wisconsin Center for Investigative Journalism and Wisconsin Public Radio, Emily Hamer and Sheila Cohen stated that “[t]he Wisconsin Constitution states cash bail can be used only as a means of making sure the accused appears for the next court hearing — meaning judges are not supposed to consider public safety when making decisions about bail.”

Similarly, in 2018, former California governor Jerry Brown signed Senate Bill 10, a measure that would have abolished cash bail in the state. The state’s bail bonds industry struck back. It collected enough signatures to make this measure a 2020 ballot referendum so voters could determine its validity. Between the 2018 bill signing and the 2020 referendum, some California courts and reformers worked to promote changes to California bail practices and courts.

Representation may be becoming fairer as well. The American Civil Liberties Union (ACLU) investigated legal representation in the state of Michigan and found it wanting. In response, the state created the Michigan Indigent Defense Commission in 2013. The commission pays for staff members and training for cases and creates standards for court-appointed attorneys.

Michigan’s commission also includes a useful FAQ section on its website to help people understand and navigate the court-appointed attorney process. It describes how court-appointed attorneys must visit clients who have been jailed within three days, for example, and explains other rights of the accused.

Investigating laws and how they impact people

U.S. states are also investigating laws to determine if they’re fair to all of their residents. Many states have mandatory minimums, which are mandatory minimum sentences that people must serve if they’ve been convicted of certain crimes. According to the U.S. Sentencing Commission, during the 2016 fiscal year, African American and Hispanic people were more likely to be convicted of offenses that garner mandatory minimums.

The conviction rates of these groups don’t match their overall representation in the U.S. population. While Hispanic or Latino people accounted for 40.4 percent of the people convicted of mandatory minimum crimes in 2016, U.S. Census estimates from 2018 placed the Hispanic or Latino population of the United States at 18.3 percent. The U.S. census estimated the African American or black population as 13.4 percent in 2018, but people in this group accounted for 29.7 percent of mandatory minimum crime convictions.

Black and Latinx people traditionally have made less money than white people and continue to do so. The U.S. Census Bureau reported that in 2017, the median average income for households who identified as white and not Hispanic was $68,145. For Hispanic households, the median income was $50,486, while the median income for black households was $40,258.

Lower incomes have traditionally meant that people were less likely to afford adequate legal assistance. They were forced to turn to overworked, underfunded legal defense programs for assistance, assistance that may have not had the time or financial resources to investigate and defend their cases. If their legal representation faced better financed opposition, accused people may have been more likely to lose their cases, serve lengthy prison sentences, and endure unbreakable cycles of poverty after their releases.

Changes such as bail reforms in Wisconsin and California and the creation of the Michigan Indigent Defense Commission hope to end such unfair outcomes. They strive to make legal representation accessible to all. They aim to make justice truly just.

About the author: Pamela Zuber is a writer and an editor who has written about various topics, including human rights, health and wellness, gender, and business.