Monthly Archives: January 2013

Ten Years Later: Human Rights, Mock Executions, And the politics behind “Zero Dark Thirty”

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By: DJ Harris, Junior Editor

“I was taken to Kandahar, in Afghanistan, where American interrogators asked me the same questions for several weeks: Where is Osama bin Laden? Was I with Al Qaeda? No, I told them, I was not with Al Qaeda. No, I had no idea where bin Laden was. I begged the interrogators to please call Germany and find out who I was. During their interrogations, they dunked my head under water and punched me in the stomach; they don’t call this waterboarding but it amounts to the same thing. I was sure I would drown.

At one point, I was chained to the ceiling of a building and hung by my hands for days. A doctor sometimes checked if I was O.K.; then I would be strung up again. The pain was unbearable.

After about two months in Kandahar, I was transferred to Guantánamo. There were more beatings, endless solitary confinement, freezing temperatures and extreme heat, days of forced sleeplessness. The interrogations continued always with the same questions. I told my story over and over — my name, my family, why I was in Pakistan. Nothing I said satisfied them. I realized my interrogators were not interested in the truth.”

 

The above is an except taken from Murat Kurnaz’s op-ed in the New York Times.[1]  Kurnaz, a Turkish citizen and legal resident of Germany, was detained by U.S. in Pakistan while riding a bus and spent over 5 years as a detainee of the United States.  Four of those years were spent in one of the detainee camps at the United States’ Naval Base at Guantanamo Bay, Cuba. 

 

As the detainee program at Guantanamo Bay[2] and the infamous Department of Justice (DOJ) “torture memos”[3] turn ten years old this month, the nation once again finds itself debating enhanced interrogation techniques, human rights, and the future of the detainment camps at Guantanamo Bay. 

At the center of this reinvigorated debate is the critically acclaimed and controversial film “Zero Dark Thirty.”[4]  Directed by Academy Award winning director Kathryn Bigalow, the film has simultaneously garnered artistic praise while simultaneously becoming a lightning rod for the ongoing debate regarding enhanced interrogation.  Presenting “ history’s greatest manhunt for the world’s most dangerous man,” the film explores America’s efforts to track down Usama bin Laden after 9/11.[5]  Focused most intently on the Central Intelligence Agency’s (CIA) work in Afghanistan and Pakistan the film presents enhanced integration techniques such as waterboarding, humiliation, and prolonged sleep deprivation along with physical violence as a means of obtaining vital intelligence in search for bin Laden. 

 

This presentation of classed harsh or “enhanced interrogation techniques” that has sparked much of the controversy.[6]  Critics have stated that the film over emphasizes the role enhanced interrogation techniques played in discovering the location of bin Laden.  In a joint letter to the Chairman and CEO of Sony Pictures Entertainment, members of the Senate Select Committee on Intelligence called the film “factually inaccurate,” and called on Sony to make changes reflecting the fact that the film’s portrayal of torture in the hunt for bin Laden is apart of the plot’s “fictional narrative.”[7]  Relying on their own investigative report, the Senators claimed torture did not have a significant role in locating Usama bin Laden. 

 

The CIA, too, has reacted negatively to the films portrayal of enhanced integration in the film.  In a letter to CIA employees, interim CIA Director Michael Morell stated that “Zero Dark Thirty” “creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding bin Laden. That impression is false.”[8] 

 

That said, many find that the film presents an accurate portrayal of the role that enhanced interrogation techniques played in the gathering of crucial intelligence regarding bin Laden’s location.  In the letter Morell admits that “some” intelligence was gained through such enhanced interrogation techniques.[9]  Additionally, CIA officials including a former Director of the CIA Michael Hayden have disputed the assertions that significant intelligence came absent enhanced interrogation methods.  Hayden asserts that the “crucial component” of intelligence that ultimately led to the raid on bin Laden’s compound was a product of enhanced interrogation.[10] 

 

That said, the current debate over enhanced interrogation techniques does not end with “Zero Dark Thirty” or the search of Usama bin Laden, as the film and the controversy surrounding is merely as microcosm of the larger debate regarding the use of such interrogation techniques by the United States and the nation’s various detainment programs related to the ‘War of Terror.’ 

 

The legal framework for torture appears plain enough.  The Geneva Conventions, applicable in international conflicts involving any nation that has ratified the Conventions, prohibits the “torture,” “cruel treatment,” and degrading treatment of persons detained during a conflict.[11]  The United States’ War Crimes Act of 1996 makes it a federal crime to commit such a “grave breach” of the Geneva Conventions, including torture and severe pain and mental suffering.[12]  Moreover, the federal crime of “torture” has been defined to include the infliction of “severe physical or mental pain or suffering” by someone acting under the color of state law.[13]  Under both federal and international law, any method of interrogation that induces such pain or suffering would appear to fall into the category torture.

 

The legal landscape regarding the line between torture and permissible interrogation methods was blurred in the post-9/11 era.  It has been well established that after 9/11 the Bush Administration authorized the use of enhanced interrogation techniques such as waterboarding, hypothermia, abdomen strikes, and stress positions in detainment camps operated by the CIA and Department of Defense (DOD).[14] 

 

To justify these interrogation practices, DOJ attorneys circulated the now infamous “torture memos”.  The memos asserted that enhanced interrogation techniques employed by the United States on various detainees were permissible.  The memos set out that enhanced integration techniques do not rise to the level of torture within the meaning of Section 2340A and the United Nations’ Convention Against Torture.  Most notably, the initial memorandum makes the somewhat dubious claim that treatment may be “cruel, inhuman, and degrading” and still not produce enough pain and suffering to be considered torture.[15]  Additionally, the initial memo puts forth the notion that such a Congressional action barring such interrogation techniques would be unconstitutional, as it would interfere with the President’s ability to be the Commander-in-Chief during a period of war.[16]

 

However, after the building criticism of harsh interrogation procedures, the Detainee Treatment Act of 2005 was passed by Congress and ultimately signed into law my President Bush.[17]  That Act, which prohibits inhumane and cruel treatment of detainees of the United States left room for the President to authorize harsh integration techniques as it still defined torture in the same broad terms as prior acts.[18]  In 2008, the U.S. Senate voted to limit the interrogation techniques employed by the United States in detainment camps to only those in the 2006 Army Field Manuel[19], however, the bill was vetoed by President Bush.[20] 

 

It was widely expected that then President-elect Barrack Obama would finally terminate the United States’ practice of harsh interrogation techniques once in office.  In 2009, one of the first executive orders signed by President Obama was Executive Order 13491.[21]  The Order not only required the closure of CIA detention centers, but also prohibited methods of interrogation out of those contained in the updated Army field manual and officially prohibited internal reliance on any previous policies issued regarding such interrogations (i.e. the torture memos).[22]  That said, the Executive Order included one significant caveat: that military and other government agencies are bound only to those techniques contained within the Army Field Manual “unless the attorney general with appropriate consultation provides further guidance.”[23]  This leaves significant room for the Executive Branch to permit enhanced interrogation techniques that many would consider torture.  Moreover, the Senate Report on interrogation techniques by the CIA during the Bush Administration has remained classified and is unavailable to the public.[24]  Perhaps more disturbing to many advocates of prisoner’s rights, is that President Obama has recently renewed a law that restricts the transfer of current detainees at Guantanamo to other detention facilities.[25]  Any detainee hoping for a non-military commissioned trail will have to wait until at least 2014. 

 

Ten years from the commencement of the detainee program at Guantanamo Bay and the initial circulation of the “torture memos, ” questions remain unanswered as to the use and legality of enhanced interrogation techniques. 

 

 

 


[1]  Murat Kurnaz, “Notes From A Guantànamo Survivor” The New York Times (January 8, 2013) http://www.nytimes.com/2012/01/08/opinion/sunday/notes-from-a-guantanamo-survivor.html?ref=sunday. 

 

[2]  N.Y. Times Overview—U.S. Naval Base at Guantanamo Bay in Cuba, The New York Times, (Updated January 3, 2012) http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/guantanamobaynavalbasecuba/index.html?inline=nyt-geo.

 

[3] “Torture Documents Released 8/24/2009,” The American Civil Rights and Civil Liberties Union (August 24, 2009), http://www.aclu.org/human-rights_national-security/documents-delivered-responsive-torture-foia  (presenting an index of internal memos between DOJ attorneys concerning the CIA’s detainment programs and enhanced interrogation).

[4]  Kate Nocera, “‘Zero Dark Thirty’ Sparks Torture Debate, ” POLITICO (January 8, 2013), http://www.politico.com/story/2013/01/zero-dark-thirty-sparks-torture-debate-85875.html. 

 

[5]  Ben Childs, “Kathryn Bigelow’s Bin Landen Film to Star Joel Edgerton,” The Guardian (January 6, 2012), http://www.guardian.co.uk/film/2012/jan/06/kathryn-bigelow-bin-laden-joel-edgerton.

 

[6]  That said it should be noted prior the films release several members of Congress expressed concern that the writers and producers of the film were given classified information by Obama Administration and other CIA operatives. 

 

[7]  Feinstein Releases Statement on ‘Zero Dark Thirty’ (December 19, 2012), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=b5946751-2054-404a-89b7-b81e1271efc9.

[8]  Chantal Valery “CIA chief decries torture in Osama bin Laden hunt movie,” Google Hosted News (December 22, 2012), http://www.google.com/hostednews/afp/article/ALeqM5ja1yp1GMw9mE2wKZNhxRsWpi2Y3A?docId=CNG.f3f54cd6ad2348c1fd3773962ec75cac.111.

[9]  Id.

 

[10]  Id.

 

[12]  18 U.S.C.§ 2441.

 

[13]  18 U.S.C. 2340-2340A 

 

[14]  See e.g., “ Sources: Top Bush Advisors Approved ‘Enhanced Interrogation’” Jan Crawford Greenburg, Howard l. Rosenberg and Ariane de Vogue, ABC NEWS (April 9, 2008) http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256&page=1

[15]  Jay Bybee “Memorandum to Alberto R. Gonzalez Counsel to The President” (August 1, 2012), http://dspace.wrlc.org/doc/bitstream/2041/70964/00355_020801_001display.pdf.

 

[16]  Id. 

 

[17]  42 U.S.C.A. § 2000dd.  

 

[18]  Charlie Savage, “Bush Could Bypass New Torture Ban,” The Boston Globe (January 4, 2012), http://www.boston.com/news/nation/washington/articles/2006/01/04/bush_could_bypass_new_torture_ban/?page=full.

 

[19]  Army Field Manual was amended in 2006 and explicitly prohibits some harsh interrogation methodologies, including waterboarding. 

 

[20]  Richard Cowan, “Bush Vetoes Bill Outlawing Waterboarding,” Reuters (March 8, 2008) http://www.reuters.com/article/2008/03/08/us-usa-waterboarding-veto-idUSN0736443620080308?sp=true   

 

[21]  Michael Isikoff, “The End Of Torture” Newsweek via The Daily Beast (January 21, 2009) http://www.thedailybeast.com/newsweek/2009/01/21/the-end-of-torture.html.

 

[22]  Id.

 

[24]  Tony Camerino, “Senate Intelligence Report On Interrogations Should Be Made Public” The Hill.com (January 9, 2013), http://thehill.com/blogs/congress-blog/homeland-security/276285-senate-intelligence-report-on-interrogations-should-be-made-public.

 

[25]  “US Defense Bill Signing Backtracks on Guantanamo” The Human Rights Watch (January 3, 2013), http://www.hrw.org/news/2013/01/03/us-defense-bill-signing-backtracks-guantanamo

Maybe We’re Not As Bad Off As We Think: Racism and Sports, At Home and Abroad

Anthony Pic

By: David Anthony, Junior Editor

Let’s get one thing out of the way right out of the gates: racism has been and, to a lesser extent, still is a problem in the United States.  It’s undeniable.  There are literally countless video and audio clips from the past hundred or so years documenting racism in the United States.  No one is surprised by this fact.

Today the United States, while certainly not perfect, is doing better.  The battles fought from the 1860’s to the 1960’s and beyond have begun to pay off.  No more church bombings, no more riots.  It’s a good start.  In fact, people more often concern themselves with debates over climate change, fiscal cliffs, and whether to buy and iPhone or Droid.  In stark contrast to the times of the Civil Rights Movement only fifty years ago, racism is starting to become, for the most part, a non-issue.

This is particularly evident in the realm of organized sports.  A 2011 ESPN poll showed that, while 55% believed African Americans had achieved in society as a whole, 88% believed it had been achieved in sports.[1]   Further, the vast majority of the remaining claims had to deal claims dealt with coaching and administrative positions than with the actual athletes.[2]  Overall, 72% of those polled believed that sports united people across racial lines.

Such equality is also expressed in the participation rates among the most popular spots in the United States.  Today, Black athletes compose 45.8% of NCAA Division I football programs and 60.9% of the same basketball programs.[3] In professional sports, Black athletes represent 66% in the NFL and 60% in the NBA while Hispanic athletes make up nearly 30% of MLB players.  In short, long gone are the days when the integration of an athletics program is marked with controversy.[4]  Rather, the focus of sports is sports.

This, however, is not the case across the globe.  Internationally, particularly in the sport of soccer, racism is still a very large problem.  The culprits are somewhat surprising.  The vast majority of racist complaints in sport come from the paradigm of progressive thought, Europe.  Eastern Europe in particular has been the home to some of the more extreme racist views.  Reports of bananas being thrown at black players, monkey chants, and large groups of fans giving Nazi salutes and yelling “Sig heil” are particular causes for concern.[5]  The situation came to a head during summer 2012, when Poland and Ukraine co-hosted the quadrennial European soccer championships.  Problems started early when the BBC released a documentary, Stadiums of Hate, which presented the fan bases of the hosting nations and instances of extreme racism exhibited by them.[6]  Around that time, the families of Theo Walcott and Alex Oxlade-Chamberlain, two black players on the English national team, decided that they would not attend the tournament.[7]  Problems continued up to the start of the tournament, when members of the Holland national team were subjected to racist chants and abuse at the team’s first training session.[8]

In the Euro tournament alone, Spain, Russia, and Croatia were each fined for racial abuse from their fan-bases.[9] While the racism displayed was on a smaller scale, the evidence of the type of racism exhibited in Eastern Europe is troubling.  Further, such racism is not confined to the Eastern side of Europe.  During the 2011-2012 English soccer season, two heavily documented incidents of racism not from the fans, but the players, took the front pages.  Luis Suárez, a Uruguayan player for Liverpool F.C., and John Terry, an English player for Chelsea F.C. were both charged with racial abuse for comments made during matched directed at other players.[10]  Suárez served an 8-match ban[11] while Terry, though found not guilty by an English court, was found guilty by a Football Association panel and banned 4 games along with having the his captaincy of the English national team stripped.[12]

Other players in Western Europe have also found that their race does not always mesh with their profession.  Mario Balotelli, recently interviewed by TIME Magazine in Europe[13], has endured a slightly different experience.  While many players of African descent have been subjected to racism by the opposing fans, Balotelli has taken it from his own supporters.  Born to Ghanaian immigrants in Palermo, Italy, Balotelli was adopted at a young age by an Italian family and is the first black player ever to represent the Italian national team in international competition.[14]  Though his popularity in England has steadily grown, due in part to his mercurial talent and also to his off-field antics, Balotelli has endured racist chants from Italian fans, including “There’s no such thing as a black Italian” as well as racism in the media.[15]

While the governing bodies of European soccer have campaigned to wipe out racism in sports, the fact that such campaigns are even needed is telling.  Imagine the NFL or NBA having to tell the fans that they shouldn’t be racist.  Granted, part of the problem in Europe is that soccer, as the only prominent sport throughout, is starkly underrepresented by minority players.  A 2008 study[16] of English soccer showed that across the top three professional divisions, the number of black players never amounted to more than 19% across a league.[17]  Moreover, these statistics come from the country that is arguably most accepting of foreign and ethnically diverse players.

Europeans are not the only ones who have noticed a problem with racism in their beloved sport.  In a bit of an international role reversal, in October 2011 Roger Goodell, commissioner of the NFL, visited London and advanced the league’s “Rooney Rule,” which requires teams to interview at least one minority candidate when filling coaching or general manager positions, to the English Football Association.[18]  The rule has not been implemented and has drawn backlash from coaches in the league.[19]

This is but an overview of the issue, but does represent that the next time an American thinks on the problems and racial tensions faced in the sociopolitical world of United States, a good dose of medicine might be to turn on one of the many iterations of ESPN.  As the variety of sports play out in a never-ending cycle, take in the integration of modern, 21st century American sports and realize that if replacement refs or collegiate playoffs are the biggest news story, that’s a good thing.  It could be a lot worse.  And while this is not true in many facets of everyday life; in the case of sports, America ultimately got it right.


[2] Id.

[11] Id.

[14] Id.

[15] Id.

[16] Kassimeris, Christos.  European Football in Black and White: Tackling Racism in Football. Pg. 90.  Lexington Books. 2008.

[17] Id.

Supreme Court to Decide Cases on Drug-Sniffing Dogs

By: Jim McLeod, Junior Editor

McLeod Pic

On October 31st, 2012, the Supreme Court justices heard oral arguments in two separate cases involving law enforcement’s warrantless use of drug-sniffing dogs. Law enforcement agencies throughout the country have shown an increasing dependency on the use of drug-detecting dogs, and these cases will certainly help to shape the limits on their use.[1]  Both cases are coming from the Florida Supreme Court, and it seems likely that the Court will rule against the warrantless use of drug dogs in one case, but not in the other.

In the first case, the Miami-Dade Police Department received an anonymous tip that Joelis Jardines was growing marijuana inside his home.  A police officer went to Jardines’ home, without a warrant, and allowed a drug-sniffing dog to smell around the front door for a few minutes.  Franky, the chocolate Labrador retriever with an impressive record of discovering drugs, alerted the officer to the smell of drugs inside the home by sitting down.  The police used Franky’s alert as justification to attain a search warrant, and subsequently raided the home where they found more than 25 pounds of marijuana.

The question presented to the Court is whether the police officer’s use of a drug-sniffing dog at a private residence constitutes an “unreasonable search” in violation of the Fourth Amendment.  A decade ago, in Kyllo v. United States, the Court ruled that officers must have a warrant to use thermal-imaging devices outside a home to detect the presence of marijuana, concluding that it amounted to a search.[2]  In that case, the Court stated: “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.  With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”[3]

Howard Blumberg, attorney for Jardines, argued that drug-sniffing dogs are no different from the thermal-imaging devices in that they are “used to explore details of the home that would previously have been unknowable without physical intrusion.”  The Supreme Court justices seemed to agree with Blumberg, noting that if these “searches” were allowed, police could apply the procedure in a discriminatory way by targeting certain areas and sweeping through the neighborhood.

Gregory Garre, attorney for Florida police, argued that there is implied consent for police, salesmen, Girl Scouts or trick-or-treaters to go up to someone’s front door, and that this is no different.  The justices replied that there is no implied consent for a policeman to bring a large animal to sniff around the home for the sole purpose of detecting contraband.

In the second case, a deputy from the Liberty County Sheriff Department in Florida stopped Clayton Harris for an expired license plate on his truck.  Aldo, a German shepherd, sniffed and alerted the officer to the presence of contraband; the officer then searched Harris’ truck and found over 200 pseudoephedrine pills, which can be used to make methamphetamines.  A divided Florida Supreme Court concluded that Aldo’s alert was insufficient to show probable cause, due to questions concerning the dog’s reliability.

In Illinois v. Caballes[4], the Supreme Court upheld the use of a drug-sniffing dog to establish probable cause during a routine traffic stop.  “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”[5]

The question presented in the Harris case focuses on whether Aldo’s reliability as a drug-detecting dog is sufficient to show probable cause during a routine traffic stop.  Aldo’s credentials are not quite as impressive as Franky’s; during his career, Franky discovered more than 2.5 tons of marijuana and 80 pounds of cocaine.  Aldo, on the other hand, has received far less training and certification, and has proven to be less reliable in sniffing out drugs.  When drugs are discovered only a fraction of the time after a drug-detecting dog alerts an officer, one of two things is happening: either the alert is not an effective tool in detecting contraband, or the officer is signaling the dog to alert because of the officer’s own suspicions. There are currently no national or state certification standards for drug-detecting dogs, but public defender Glen Gifford urges the justices to consider the dog’s track record in determining the propriety of the search.

Many states have sided with Florida law enforcement officials, stating in an amici brief that “all States have a keen interest in combating illegal drugs” and that “drug-detection dogs play a vital role in these efforts.”[6]  “[T]he Florida Supreme Court’s decision jeopardizes the States’ ability to use this crucial tool to discover illegal drugs prior to their distribution.”[7]

The Obama Administration has also voiced its opinion on the issue: “[T]his Court should reaffirm that the use of a narcotics-detection dog, whether outside a vehicle, a package, or a home, does not infringe legitimate privacy expectations and therefore does not constitute a Fourth Amendment search.”[8]  Both of these cases will have far-reaching implications on the future use of police dogs in discovering contraband in people’s homes and vehicles.  While one case could lead to drug-sniffing canines having full discretion in selecting private homes to be searched, the other could require dogs to put together résumés to establish their reliability in sniffing out illegal drugs. 


[2] Kyllo v. United States, 533 U.S. 27 (2001).

[3] Id. at 31.

[4] Illinois v. Caballes, 543 U.S. 405 (2005).

[5] Id. at 410.

[6] Brief for Texas, et al. as Amici Curiae in Support of Petitioner, Florida v. Jardines (No. 11-564).

[7] Id.

[8] Brief for the United States as Amicus Curiae Supporting Petitioner, Florida v. Jardines (No. 11-564).

Same-Sex Marriage Affected by November 2012 Elections

Sowell Pic

By: Bonnie Sowell, Junior Editor

There is no doubt that same-sex marriage is a hot topic in this country, both legally and politically. On November 6, 2012, the number of states that recognize same-sex marriage rose to nine along with the District of Columbia.[1] On the other hand, North Carolina recently passed a constitutional amendment denying marriage rights to same-sex couples in the state,[2] but Minnesota voters recently defeated such a constitutional proposal in their own state.[3]  With the recent decision in Brown v. Perry[4] holding that California’s state-wide vote overturning Proposition 8 was unconstitutional on equal protection grounds and with a number of challenges being raised to the Defense of Marriage Act,[5] there is reason to believe that the issue of same-sex marriage will get to the Supreme Court in a few years. There are several avenues that the Court could use to confirm or deny that a Constitutional right to marriage for all couples exists. Substantive due process has been popular in the past for gay rights, most notably in the Court’s decision in Lawrence v. Texas[6] in which the Court struck down a Texas law banning same-sex sodomy.  In that decision, the Court did a careful analysis of substantive due process asking whether the right to engage in private consensual sex acts is a fundamental right “deeply rooted in this Nation’s history and tradition.”[7] To determine whether the proposed right is fundamental, the Court looks to see whether the State legislatures have overwhelmingly trended a certain way on the issue.  In Lawrence, the majority noted that the proper scope of the inquiry is the past fifty years of state legislation.[8]  If looking to state laws in that fifty year period reveals a general consensus that the right is protected, the Court will incorporate that right as protected under substantive due process.  If no consensus exists, the Court may also look to international law or institute its own judgment.

Because of the state law analysis employed in substantive due process cases, the number of states that have passed legislation or constitutional amendments in the past fifty years about same-sex marriage is particularly important.  If the Court finds that the States have trended in the past fifty years toward allowing same-sex marriage, it will likely find such a right to be protected under substantive due process.  However, if the Court finds that there has been no such consensus or that the trend is in the reverse, the Court will likely not find the right to be fundamental and thus protected.

In Lawrence, the Court was determining whether to overturn its previous decision in Bowers v. Hardwick,[9] and it thus looked at the trends in state legislation starting from 1986 when Bowers was decided. At that point, twenty-five states prohibited sodomy, but by 2003 when Lawrence was decided, only 13 states had laws on the books prohibiting such conduct, and only four states enforced those laws against homosexual conduct.[10]  Of those thirteen states where the conduct was proscribed, there was a pattern of non-enforcement with respect to consenting adults acting in private.[11] Although the Court also relied on international law and the reasoning of other substantive due process cases, the trend against having and enforcing state sodomy laws was a big reason why the Court found the right to engage in same-sex sodomy to be protected.

Because the issue of same-sex marriage has never reached the Supreme Court, we cannot simply look back to changes made since the last decision on the topic was issued.  We are instead left to do the analysis of state laws and constitutional amendments within the past fifty years, as put forth in Lawrence.  Within that period, thirty three states[12] have passed statutes restricting marriage as between opposite-sex couples, and twenty-seven states[13] have passed constitutional amendments banning same-sex marriage.[14]  Only four states[15] and the District of Columbia have passed statutes in the past fifty years allowing same-sex marriage, and six states[16] allow same-sex marriage based on court orders or recent votes at the ballot box. Although same-sex marriage advocates have made great strides in the fight for marriage equality, the nine states plus the District of Columbia that recognize the same-sex marriage right will not be enough to create the national consensus necessary for the finding of a fundamental right under the substantive due process guarantee.

Fortunately, this is not the end of the road for same-sex marriage proponents.  There are a variety of other avenues available for recognition of the same-sex marriage right including Equal Protection and Freedom of Association.  It is also possible that the Court will further narrow the time period in which it examines state legislation under substantive due process.  If this does occur, the work of advocates in getting same-sex marriage rights recognized in states may help further the cause of marriage equality on a national level.


[1] Maine, Maryland, and Washington adopted same sex marriage provisions on November 6, 2012 by popular vote.  Lila Shapiro, Gay Marriage Victory in Maine, Maryland; Minnesota Votes Down ‘Traditional’ Amendment (November 7, 2012) available at http://www.huffingtonpost.com/2012/11/07/gay-marriage-victory_n_2085900.html.  Other states recognizing this right include Massachusetts, New Hampshire, Vermont, Iowa, Connecticut, and New York. The District of Columbia also recognizes the right to same sex marriage. Rachel La Corte, Washington Voters Narrowly Approve Gay Marriage (November 6, 2012) available at http://seattletimes.com/html/localnews/2019621858_apwagaymarriage7thld.html.

[2] Martha Waggoner, Amendment One, North Carolina Gay Marriage Ban, Passes Vote (May 8, 2012) available at http://www.huffingtonpost.com/2012/05/08/amendment-one-north-carolina_n_1501308.html.

[3] Shapiro, supra note 1.

[4] 671 F.3d 1052 (9th Cir. 2012).

[5] Adam Liptak, States’ Votes for Gay Marriage are Timely, With Justices Ready to Weigh Cases, (November 7, 2012) available at http://www.nytimes.com/2012/11/08/us/supreme-court-to-begin-weighing-gay-marriage-cases.html?_r=0.

[6] 539 U.S. 558 (2003).

[7] Id. at 588.

[8] Id. at 571. (“In all events we think that our laws and traditions in the past half-century are of most relevance here.”)

[9] 478 U.S. 186 (1986).

[10] Id. at 573.

[11] Id.

[12] Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

[13] Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.

[14] Thomson Reuters, Defense of Marriage Statutes and Constitutional Provisions (2012), a 50 State Survey. Dates researched and compiled by Bonnie Sowell and Keith Waters.

[15] Connecticut, New Hampshire, New York, and Vermont

[16] California, Iowa, Maine, Maryland, Massachusetts, and Washington.

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