Category Archives: Alabama

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

By: John Gamble

Alabama’s Anti–Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”[1] However, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[2] That vague exemption has actually proved quite a significant roadblock to enforcement of the law.

In 1998 the Alabama legislature passed the Anti-Obscenity Enforcement Act ostensibly to deal with a serious public nuisance in the state, the commerce of dildos and other like objectionable devices. The legislature justified the necessity of the act stating, “That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores . . . the sale and dissemination of obscene materials should be regulated without impinging on [the] First Amendment . . . .”[3] Similar justifications were used by Texas in their comparable sex toy law, to no avail when the validity of the Texas law was brought before the Fifth Circuit Court of Appeals.[4]

Alabama’s previous Attorney General, Troy King, thought the sex toy issue one of such importance to fight a long and costly legal battle spanning almost a decade, in order to rid the state of these corrupting rubber menaces. However, that battle produced a rather pyrrhic victory when the state won its case before the Eleventh Circuit. Because not only was the decade long legal dispute undoubtedly expensive, but likely produced little results in terms of actually enforcing of the law. The law, vaguely written in general, contains the aforementioned key exception that allows the sale of sex devices for “a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[5] Many sex toy shops continue to operate in the state currently hiding beneath this broad and vague exception.[6] And in fact, the “attorney general’s office has never prosecuted a store for selling to a customer who said the purchase was for one of the approved reasons.”[7] Apparently, that loophole in Alabama’s law is quite large, large enough for a Sex Toy Drive-Thru to do a successful business in Huntsville in the immediate aftermath of the state’s successful defense of the law.[8] Increased liveliness in Alabama’s political rhetoric may be the only positive result from the law. The Libertarian candidate for governor in 2006, Loretta Nall, began a sort of dildo drive entitled “Sex Toys for Troy” in 2007, which called for citizens to voice their disagreement with the law by mailing sexual devices to the Attorney General’s Office.[9] And while the idea of the former straight-laced Attorney General unwittingly opening packages packed full of adult inflatables of sundry colors and sizes might seem chortle-worthy, there is nothing comedic about the cost to the state’s coffers from the litigation nor is it comical that this sort of legislation contributes to Alabama’s image as the “laughingstock of the country.”[10] The Anti-Obscenity Enforcement Act particularly contributes to this image when we consider the unfortunate fact that the Act is not some outdated dusty old blue law freshly dug from the courthouse basement, but a law that was passed at the end of the Twentieth Century.

The Anti-Obscenity Enforcement Act was challenged almost immediately following its passage. During a convoluted legal battle in which the case pinged back and forth between the Eleventh Circuit and the Northern District of Alabama two appellate rulings from the Eleventh Circuit are particularly important in understanding the Eleventh Circuit’s attitude regarding the constitutionality of the statute. In Williams IV[11]the court was forced to evaluate the statute in light of new Supreme Court precedent, Lawrence v. Texas[12]. In Lawrence, the Court overturned a Texas sodomy statute on Due Process grounds.[13]Problematically, however, Lawrence contained all sorts of lofty dicta seemingly protective of privacy rights, but the majority did not clearly state what level of scrutiny the Court applied in striking down the Texas law.[14] The lack of a specific standard of review created quite an unusual problem given the importance of the three-tiered scrutiny system to due process/fundamental rights analysis.[15]Though Lawrence broadly reframed the right at stake, the decision did not do so clearly despite Justice Kennedy’s seemingly sublime libertarian proclamations including, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[16]

The Williams IV court distinguished the fact situation in Lawrence noting, “There is nothing private or consensual about the advertising and sale of a dildo.”[17]The Williams IV court also refused to conclude from Lawrence that sexual privacy is a fundamental liberty interest that would trigger strict scrutiny.[18]To determine this, the Williams IV court even conducted its own Glucksberg analysis, which of course resulted in Rational Basis review, as no fundamental right was found.[19] Thus, the Eleventh Circuit decided that because the Alabama law was based on only the trade of such sexual items that privacy was not implicated in a similar manner as the sexual conduct at issue in the Lawrence decision. Therefore, the Williams IV court had no difficulty upholding the Anti-Obscenity Act under Rational Basis Review.

More interestingly, the case returned to the Eleventh Circuit in 2007. The Williams VI[20]court again distinguished the commerce of sex toys from the situation in Lawrence. The court opined that because the private use of sex toys was not prohibited under the Alabama law, Lawrence did not govern the result. Despite the Lawrence endorsement of Justice Stevens’ view opining that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ,”[21] the Williams VI court again further extrapolated that Lawrence did not completely bar public morality as a rational basis for legislation. The Court noted, “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence If now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . .”[22]

However, the following year the Fifth Circuit had a different take on Lawrence when it interpreted a very similar Texas statute. The Fifth Circuit circumvented the ambiguity found in Lawrence regarding the level of scrutiny applied by the Court by applying the holding of Lawrence directly to the facts at bar in Reliable Consultants without regard for the standard of review.[23]However, though the standard of scrutiny was somewhat ignored, the Fifth Circuit’s opinion seems to read like Rational Basis Review. Regardless, Texas could not even overcome rational basis because aside from public morality, now insufficient according to the Fifth Circuit in the aftermath of Lawrence, Texas could advance only dubious government interests supporting the law including interest in protection of “unwilling recipients” of sex toys.[24] Unlike the Eleventh, the Fifth Circuit interpreted Lawrence as utterly barring public morality as a sufficient justification for a statute even under rational basis review.[25] They particularly noted the adoption of Justice Stevens’ view as controlling by the majority in Lawrence.[26] The Fifth Circuit continued to opine that just as public morality was insufficient to regulate private adult sexual activity in the home, as was the case in Lawrence, then public morality is also an insufficient justification for the Texas statute which restricted the same sphere of activity.[27]

With the unresolved circuit split, the extent of Lawrence undefined, and an absolute lack of interest by Alabama’s legislature in repealing the law, it seems the Anti-Obscenity Enforcement Act is around to stay for the time being. The Eleventh Circuit’s refusal to give Justice Steven’s language full effect is regrettable as it has contributed to a “plain silly”[28] law languishing in our state code until the People compel the legislature of Alabama to change it. But connoisseurs of such objects need not be totally crestfallen, a sex toy can still be purchased in the state with only a quick signature of a waiver affirming to use the device only for medical purposes. So far the Attorney General’s Office has not required buyers to make the arduous trek across state lines to Florida or Georgia.


[1]Ala. code § 13A-12-200.2 (West, Westlaw through 2013 Legis. Sess.).

[2]Ala. Code § 13A-12-200.4 (West, Westlaw through 2013 Legis. Sess.).

[3] Anti-Obscenity Enforcement Act, 1998 Ala. Acts 98-467.

[4]See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-746 (5th Cir. 2008) (explaining that no “rational connection” exists between the Texas statute and the protection of children nor does such a connection exist regarding unwilling adults who must make an “affirmative decision” to purchase such a device).

[5]§ 13A-12-200.4.

[6] Mike Brantley, Alabama Sex Toy Ban: Court Rejects the Challenge, (Sep. 11, 2009, 3:41 PM),http://blog.al.com/live/2009/09/alabama_court_rejects_challeng.html

[7]Id.

[8]Jay Reeves, Sex Toy Drive-Thru Opens after Long Legal Battle in Alabama, (Dec. 30, 2010, 5:30 AM),http://www.huffingtonpost.com/2010/12/30/pleasure-sex-toy-drive-thru-alabama.

[9]Nall Adds Humor to Sex Toy Debate, The Tuscaloosa News (Nov. 16, 2007, 3:30 AM), http://www.tuscaloosanews.com/article/20071116/NEWS/711160301?tc=ar

[10]John Archibald, Alabama Rep. John Rodgers Out to Bust the Sex Toy Ban (Jan. 20, 2008, 6:57 AM),

http://blog.al.com/archiblog/2008/01/alabama_rep_john_rogers_out_to.html (quoting Representative John Rogers, who has twice unsuccessfully tried to repeal the current statute).

[11] Williams v. Att’y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[12] Lawrence v. Texas, 539 U.S. 558 (2003).

[13]See id. at 562-564.

[14]See generally William C. Hayes, “Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas, 44 Ga. l. Rev. 245, 259 (2009) (noting both that Justice Kennedy’s majority seems to have completely ignored the two-part Glucksberg fundamental rights test and that lower courts have been confused by Lawrence’s precedential value).

[15]See U.S. v. Virginia 518 U.S. 515, 567-568 (1996) (Scalia, J., dissenting) (explaining strict scrutiny is applied to state classifications affecting fundamental rights as determined by the Court and noting that such, in his view, “’fundamental rights’ should be limited to ‘interests traditionally protected by our society’”); see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality, Scalia, J.); for more on the Court’s traditional recognition of narrow fundamental rights see Washington v. Glucksberg 521 U.S. 702, 721 (1997).

[16]Lawrence at 562.

[17] Williams IV at 1237 n. 8.

[18]See id. at 1238 (explaining that Lawrence was actually a rational basis decision).

[19]Id. at 1242 (defining the right at issue in the case as “the right to sell and purchase sexual devices”).

[20] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[21] Lawrence at 577.

[22] Williams VI, 478 F.3d at 1323 (citing Williams IV, 378 F.3d at 1238 n. 8).

[23]See Reliable Consultants at 744.

[24] Id. at 746.

[25] Id. at 745.

[26] Id.

[27] Id.

[28] Williams IV at 1251.

When do Alabamians become rightful persons? The Personhood Initiative

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review


Alabama has recently joined the ranks of states to consider a Personhood bill. The Personhood Initiative, a group devoted to defining personhood as beginning at “the moment of initial formation,” asserts that “abortion has an Achilles heel, and that is where we must direct our attack.”[1] The group believes that this Achilles heel exists in the Roe v. Wade decision, and cites dicta from the majority opinion, penned by Justice Blackmun, which states that “if [the] suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed by the 14th Amendment.”[2] The Court in Roe v. Wade went on to note that “no case could be cited [holding] that a fetus is a person within the meaning of the Fourteenth Amendment.”[3]

The Alabama Senate is currently considering an attempt at exploiting this loophole in the form of SB5, which proposes a statutory change to the Alabama Code to define the term ‘persons’ as including “any human being from the moment of fertilization and implantation into the womb.”[4] Additionally, in the House of Representatives, John Merrill has sponsored HB 405 and 409, a Personhood Statute and Amendment, respectively.  Representative Merrill intends “this bill [to] clearly affirm that, under law, an individual becomes a person upon fertilization.”[5]

Interestingly, the language of SB5 represents a compromise intended to avoid some of the problems raised by recent Mississippi legislation, which failed to gain majority support last year, but may also muddy the waters concerning when a fetus becomes a person. As critics have pointed out, the moment of fertilization and the moment of implantation are not the same moment. To be clearer, as medically defined, “implantation refers to the attachment of the fertilized egg to the uterine lining, which occurs approximately 6 or 7 days after conception (fertilization).”[6]

While the Alabama legislature may be attempting to exploit loopholes rather than challenging the Supreme Court head on, the Alabama Supreme Court feels no such hesitation in denouncing Roe v. Wade as obsolete. In a recent decision authored by Justice Parker, the court wrote that “[m]edical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development . . . the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun’s words, ‘reluctant . . . to accord legal rights to the unborn.’ For these reasons, Roe’s viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court.” [7]

In that same opinion, and in no uncertain terms, the court affirmed language from a 1973 decision, stating, “from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.” [8]

A look at the initiative introduced in Mississippi last year reveals that it failed in part due to a number of concerns raised by citizens which lawmakers ultimately failed to address to voters’ satisfaction. For one, supporters of the Mississippi bill made clear that the purpose of the legislation was explicitly to provoke a lawsuit which would lead the Supreme Court to overturn the Roe v. Wade decision.[9] Proponents wasted no time beating around the bush or attempting to find legal loopholes. Such a brazen approach may have concerned fiscally conscious voters aware that defending unconstitutional legislation is costly to the state and its taxpayers.

Many voters also worried about the vagueness of the proposed amendment and the possible consequences. Governor Haley Barbour, traditionally an opponent of abortion, voted for the amendment, but expressed concerns. He worried about “the ambiguity and about the actual consequences—whether there [were] unforeseen, unintended consequences.”[10]

Indeed, the language of the proposed amendment was sweeping. It would have defined a person “to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.” This language reached a number of issues in addition to abortion, including the use of the morning after pill and intrauterine devices to prevent pregnancy. Sterile parents also worried that the amendment would cause physicians to cease performing in vitro fertilization due to fears of criminal prosecution.

Ben DuPré, an attorney at Foundation for Moral Law, attempts to address some of these same concerns regarding the proposed Alabama legislation. With regard to in vitro fertilization, DuPré says that “IVF would absolutely still be legal; the only change is that it would be illegal to purposely kill embryo children created via IVF-a practice to which many fertility clinics already adhere, and nearly every mom undergoing IVF would agree with. Embryos formed but not implanted by IVF may be adopted as ‘snowflake children’ by other parents, but they may not be destroyed.”[11] Likewise, DuPré argues that recognizing personhood will not affect contraceptives because true “contraception” only prevents fertilization.

Accepting these assumptions as true, citizens are still left to wonder about the possible effects of the vague wording of SB5. When, exactly, does personhood attach? Is it at day one, at the very moment of conception? Or is it at day six or seven, at the moment of implantation? If these questions go unanswered, Alabama’s Personhood bill supporters may follow in the footsteps of those in Mississippi, waving goodbye to well-intentioned-but-rejected legislation.

Assuming however, that assurances such as those offered by DuPré assuage the fears of Alabama voters and the state successfully passes some version of Personhood legislation, what’s the next step legally? As no other state has yet passed substantially similar legislation, the law will almost certainly invite constitutional challenge. The question then is, what does Roe v. Wade dictate? There are two plausible lines of thought. Either Roe v. Wade stands for the proposition that states may only protect life that is at or past the stage of viability or, as proponents of the Alabama legislation suggest, Roe v. Wade left open to the states the ability to define personhood as the representatives of each state’s citizens (in the case of a bill), or the majority of a state’s citizens themselves (in the case of a state constitutional amendment), see fit. Even if Alabama doesn’t win the race to the courthouse steps, some other state is sure to get the question before the Supreme Court in the near future.

An analysis of the Court’s plurality decision in Planned Parenthood v. Casey [12] may also shed some light on the plausibility of Alabama’s proposed ‘loophole’ exploitation. The plurality opinion  in Casey overturned the strict trimester formula put forth in Roe v. Wade in favor of a balancing test which weighs a woman’s interest in obtaining an abortion against the State’s interest in protecting a fetus. Based on continuing advances in medical technology, by the time Casey was decided, a fetus could be considered viable at 22 or 23 weeks, as opposed to the 28 weeks common at the time of the Roe decision. The plurality clung to viability as the appropriate point at which the state’s interest in the fetus outweighs a woman’s rights such that abortion can be banned entirely, except in cases where the life or health of the mother is at issue.

The plurality did however alter the standard of scrutiny for abortion regulations. Under Roe v. Wade the standard was heightened scrutiny. The Casey plurality replaced this with a lesser “undue burden” standard. Undue burden was defined as having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Although the plurality staunchly affirmed the central holding of Roe v. Wade, there may be, as supporters of the Alabama Personhood legislation contend, some wiggle room. The Court indicated in Roe v. Wade that if a fetus were legally classified as a living being, the Fourteenth Amendment would protect that life, even in the face of a mother’s conflicting right to privacy grounded in the Due Process Clause. Although the Court has framed that right to privacy in strong language, i.e., “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,”[13] it must give way before a squarely conflicting right to life.

Right or wrong, the Personhood movement is a rising tide. In California, Florida, Georgia, Iowa, Montana, Nevada, Oklahoma, Oregon, and Texas, advocates are in various stages of attempts to get measures on the agenda for the 2012 legislative sessions. Indeed, the North Dakota House passed “The Defense of Human Life Act” last year, which defined a human being as “an individual member of the species homo sapiens at every stage of development.”[14] The Ohio House took a slightly different tack, passing Heartbeat legislation, which would ban abortion once a fetal heartbeat can be detected, which can be as early as six weeks into the developmental process. As for Alabama, this state has proven time and again that it lives up to its motto: “audemus jura nostra defendere,” translated, “we dare defend our rights,” and often in the face of conflicting Supreme Court precedent. The question of the day is, when do Alabamians become rightful persons?


[2] Roe v. Wade, 410 U.S. 113, 156-157 (1973).

[3] Id.

[7] Hamilton v. Scott, 2012 WL 517459 (Ala. 2012).

[8] Wolfe v. Isabell, 291 Ala. 327, 330-31 (1973).

[12] 505 U.S. 833 (1992).

[13] Eisenstadt v. Baird, 405 U.S. 438 (1972).

Before the Court: The Constitutionality of Life Without Parole Sentencing for Juvenile Murderers

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

That is the question that is before the U.S. Supreme Court in cases being heard concurrently, Miller v. Alabama and Jackson v. Hobbs. The Supreme Court heard oral arguments on these cases on March 20, 2012. This issue has worked its way into the Supreme Court docket as a response to questions arising from a somewhat recent thread of cases including Roper v. Simmons and Graham v. Florida.

In Roper, the court looked at the constitutionality of the death penalty as a sentence for juveniles who were under the age of 18 when their crimes were committed[1]. The Court ultimately concluded in its 2005 decision that the death penalty for teenagers under the age of 18, was indeed, unconstitutional under the Eighth and Fourteenth Amendment.[2] The court relied on “the evolving standards of decency that mark the progress of a maturing society” in order to make a judgment in regards to which punishments reach the level of “cruel and unusual.”[3] The Court also looked to the fact that a majority of the states disallowed the death penalty for juveniles as indicia (evidence) of general societal views that juveniles are “categorically less culpable than the average criminal.”[4] As an illustration of this, in Justice Kennedy’s opinion, he indicated that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[5]

Furthermore, the Court took this holding a step further in Graham. The Court, in that case, held that life sentences without parole are cruel and unusual under the Eighth Amendment in cases involving juvenile non-homicide offenders. The Supreme Court left unanswered the question of whether sentencing juveniles who committed murder to life without parole is permissible.

            The Court’s stance on this latest question could potentially affect over 2,000 prisoners who committed murder when they were under eighteen and are currently sentenced to life without parole.[6] However, 79 of these prisoners are imprisoned for crimes they committed when they were fourteen years of age or under, the ages of the defendants in Miller and Jackson.[7] Therefore, the repercussions of the Court’s decision could be felt by many more individuals if they broaden their holding to include those under eighteen years of age, or lessen its impact if the Court narrows its holding to preclude this sentence for those fourteen and younger.

            The Court will be facing a potentially difficult task in reaching a conclusion in this instance, as the Miller and Jackson cases present quite varied situations. The facts of the Miller case can be considered rather shocking. Evan Miller took part in (and arguably orchestrated) the killing of his middle-aged neighbor Cole Cannon in Alabama. Miller, fourteen at the time of the murder, and Colby Smith, his sixteen year old co-defendant, brutally beat Cannon in his trailer after attempting to rob him of approximately $300. The boys had already stolen a number of baseball cards from Cannon’s home earlier in the evening. The boys returned to Cannon’s trailer a short time after they left him to die, in order “to cover up the evidence” by setting the trailer on fire.[8] Cannon eventually died due to smoke inhalation from the fire.[9]

            On the other end of the spectrum, the Jackson case involves an arguably more sympathetic defendant. Kuntrell Jackson, also fourteen years old at the time, was charged with felony murder in the state of Arkansas.[10] Jackson did not shoot the victim, rather Jackson was with a group of boys when they robbed and shot a video store clerk with a sawed off shot-gun.[11]

            These two cases illustrate the wide variance of potential scenarios that could lead to a sentence of life without parole for a juvenile who is convicted of murder. It also raises questions about the mandatory nature of some of the states sentencing schemes. Currently, thirty-nine states allow sentences of life without parole for juveniles who commit murder.[12] Both Alabama and Arkansas, the states at issue in these cases, have mandatory requirements of sentences of life without parole for juveniles who are convicted of murder. In fact, around some 2/3 of states which permit life sentences without parole for juveniles require mandatory sentencing.[13]

            There is a good argument that mandatory sentences may also prevent the telling of the whole story involved with a case. If a person is automatically given the sentence of life without parole, it prevents the jury or the judge (whoever is carrying out sentencing) from considering relevant mitigating factors. For instance, just from reading the facts given above in the Miller case, a potential member of the jury may say to themselves it is justified that the young man was given a life sentence without the chance of parole. However, would they feel this same way if they learned that Evan Miller grew up subject to a childhood of abuse? That he was beaten by his alcoholic father? That his mother was a drug addict?[14]  That he turned to drug use and alcohol to cope with his situation at the age of eight?[15]  Even if these facts would change a jury’s mind, they do not play a significant role under the current mandatory sentence guidelines.

Some, including Miller’s defense attorney Bryan Stevenson, argue that sentences of life without parole should be done away with altogether for children under eighteen. In part, this argument hinges on the fact that America has one of the most severe systems of punishment for juveniles when compared to other countries.[16] In addition, Stevenson argues that the Court’s holding in Graham should not be limited to non-homicide cases because “[a]ll children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.”[17]

 On the other hand, a number of legal experts would argue that a constitutional ban on these sorts of sentences for juvenile offenders would not be the most effective means of achieving a just result. As a victim right’s advocate Kent Scheindegger put it, “[A]ge is something to take into consideration in sentencing, but that one factor should not trump everything else.”[18]

At the end of the day the fact that this sentence is permitted by such a majority of the states may weigh heavily on the Court’s analysis in accordance with “the evolving standards of decency” under the Eighth Amendment. As Justice Scalia indicated during oral arguments, “[T]he American people have decided that that’s the rule. They allow it. And the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?”[19]


[3] Roper, 545 at 551.

[4] Roper,

[5] Roper, 545 at 553.

[17] Oral Arguments, Miller v. Alabama, No. 10-9646,  pg 3. March 20, 2012. http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-9646.pdf

[19] http://www.cnn.com/2012/03/19/opinion/steinberg-juvenile-crime/index.html?iref=allsearch

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Alabama’s Immigration Law Does No Good

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama House Bill 56 is the latest and most aggressive state immigration law to date. According to Micky Hammon, the bill’s chief sponsor, it was designed to “attack every area of an illegal alien’s life.”  Surpassing the controversial Arizona and Georgia legislation, the bill calls for strict enforcement of its measures, which range from creating a civil cause of action against employers who fire citizens while retaining illegal aliens; requiring public schools to determine the immigration status of all incoming students and their parents;  to requiring police officers to make a reasonable attempt to determine the residency and immigration status of a person stopped, if there is a reasonable suspicion that the person is an illegal immigrant.

The new law, passed in by the Alabama legislature and signed by Governor Robert Bentley, has already been challenged as a preemption of federal power, with mixed results.  But perhaps more interesting is the specter of racism cast by this law. There are illegal immigrants of every color in this country.  However, it is the Hispanic community, both U.S. citizens and illegal immigrants, which has become the focus of this debate.  As such it is only appropriate to consider the effects of the bill on both groups.

Latinos make up approximately 3.9% of the Alabama’s population, or about 185,602 people.[1]  It is estimated that illegal immigrants make up around 64% of the Hispanic population, or around 120,000 people.[2] Moreover, the two groups are often interwoven—i.e. children, who are citizens, may have parents who are here illegally.  The implications of H.B. 56 for Hispanic citizens of Alabama are terrifying.  Already nightly newscasts are broadcasting stories on “How to Stay Safe,” which include tips like always carrying “papers.” After the passage of H.B. 56, Hispanic Americans are forever foreigners in the eyes of the fellow citizens—they must be constantly ready to prove that they belong here as citizens and lawful residents.  However, “showing papers” may be the least of these worries if the Alabama legislature is successful in getting the law enforced in its entirety.

U.S. District Court Judge Sharon Blackburn blocked some portions of the law which made it a criminal offense to conceal, harbor, transport, or shield an illegal immigrant.  If the Alabama legislature is successful in its appeal, many Hispanic families would be confronted with the dilemma of being forced from their home in order to keep their family together, or face criminal charges if they continue to have contact with family members who are illegally in the state. Furthermore, approved portions of the law place children, who are legally in the U.S., whose parents are illegal immigrants, in an untenable position. Also, H.B. 56 section 30 makes it a felony for an illegal immigrant to enter into a business contract with the State of Alabama.  The implications may not be apparent at first glance, but in many parts of the Alabama, utilities, such as water, sewage, and electricity, are only available through the State. Clearly, as claimed in the Federal appeal, Alabama’s new law is “highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings.”[3]

For those Latinos not lawfully in the U.S., the message is clear—Get Out. The only remaining question is where? Although some families are leaving the country voluntarily, many are simply crossing state lines. Either way, they are moving carefully, since the law became effective on September 29th , many illegal immigrants fear detention, or criminal charges, if they are seen by law enforcement. As Vianey Garcia, an illegal immigrant said, “We have to move. We have to leave everything.  We can’t take anything because I’m afraid they can stop us and say why are you moving?”

The repercussions of H.B. 56 are already apparent.  The Thursday the law went into effect (September 29th) scores of Latino students were absent from schools, and many have never returned.  Although it is too early for reliable statistics, anecdotal evidence from the community suggests many Latino families are fleeing in fear. Proponents of the law have lauded the early signs of success; they are driving immigrant families from the state. However, it is the climate of fear created by H.B. 56 that most worries its opponents.

Fear, it is the one word that cuts through every article, news report, and interview on H.B. 56. After all, the law is an “attack” on illegal immigrants; and by proxy, their family members who are legally in the U.S., and let’s be honest, Latinos in general. The law tried to create criminal and civil sanctions not just against illegal immigrants themselves, but also against anyone who would employ, transport, aid, or even encourage them—they have been cast as lepers by Alabama lawmakers. As the stereotypical face of illegal immigration, Hispanics face suspicion and disdain lest others be exposed to the taint of illegal immigration.

It has been said H.B. 56 and its Arizona and Georgia counterparts are a cry for help—an extreme reaction to the federal government’s inaction to state immigration concerns. And like most extreme measures, it has produced a result, but at what cost? The federal government has cited concerns that extreme state immigration policies interfere with the federal strategy and enforcement—hardly a convincing argument when it was the inaction of the federal government that prompted the passage of H.B. 56 in the first place. Civil rights groups, like the Southern Poverty Law Center, claim the law will lead to racial profiling, chill children’s access to education, and result in violations of the Due Process and Equal Protection clauses. Church leaders have also protested the law, claiming it violates, and in some cases would criminalize actions prompted by Christian values. The agricultural sector says it is unable to find a replacement workforce, that crops are rotting unpicked in the fields. For a state so recently ravaged by tornadoes, contractors are concerned that a dearth of workers will cause long delays in rebuilding the state.

Furthermore, proponents of the immigration law claim it is designed to protect the residents of Alabama from bearing the costs of illegal immigrants; but there is no clear evidence that illegal immigration creates a financial burden.[4] Moreover, evidence exists that illegal immigrants may be an economic boon. It is estimated that in 2010 illegal immigrants in Alabama paid $130.3 million in state and local taxes.[5] Furthermore, “if all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs.”[6]

I am not contesting the importance of resolving illegal immigration. It is an important issue that begs resolution, but H.B. 56 is not the solution; moreover, it creates more problems.Furthermore, I recognize that illegal immigrants are not United States citizens, and therefore not entitled to all of the rights and privileges guaranteed by the Constitution. However, this “attack” is not well executed, and both legal and illegal residents of Alabama have been harmed by its carelessness. H.B. 56 is so poorly crafted, and that is evident in that it has created enormous hardships without serving any of its stated interests. The problem of illegal immigration deserves more consideration than reactionary legislation.  History is filled with examples of minorities whose rights and liberties have been trampled because they are the scapegoat for a larger problem. The state of Alabama has a chance to choose a different road; to draw on its history and turn from the, perhaps popular, path of segregation and instead draft legislation that actually addresses the needs of its citizens.

Sources:

http://news.yahoo.com/obama-administration-appeals-alabama-immigration-law-220502628.html

http://blog.al.com/birmingham-news-commentary/2011/10/viewpoints_undocumented_doesnt.html

http://www.csmonitor.com/USA/2011/0929/Alabama-life-already-changing-under-tough-immigration-law

http://www.splcenter.org/get-informed/news/splc-civil-rights-groups-file-emergency-request-to-block-key-provisions-of-alabama

http://abcnews.go.com/blogs/headlines/2011/10/latino-students-withdraw-from-alabama-schools-after-immigration-law-goes-into-effect/

http://www.scribd.com/doc/66701706/Summary-Opinion-on-Alabama-Immigration-Law

http://blog.al.com/breaking/2011/09/federal_judge_throws_out_xxxx.html

http://www.immigrationpolicy.org/just-facts/new-americans-yellowhammer-state

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