"Don’t Ask, Don’t Tell": The Struggle Continues

By Anonymous

The participation of gays in public life, particularly in the military, is a highly controversial issue, as manifested in the contentious battle over President Bill Clinton’s "Don’t Ask, Don’t Tell," a compromise military law that embraces mutual compliance between homosexual soldiers and their superiors. Homosexuals are banned and military officers are forbidden to ask if soldiers are gay. President Barack Obama promised to overturn this policy, but he hasn’t yet. To do so, he would need the support of the Congress.

This lightning rod issue was the subject of a debate between anti-"Don’t Ask, Don’t Tell" Dr. Nathaniel Frank, an openly gay scholar focusing on gay rights and author of Unfriendly Fire: How the Gay Ban undermines the Military and Weakens America and Dr. Brian E. A. Maue, a U.S. military official who speaks on his own behalf and holds a PhD in Policy Analysis and an MBS in Human Resources Management. The debate was held at non-partisan, nonprofit, research Pritzker Military Library. The moderator was Shawn Healy, managing director for the McCormick Freedom Museum.

Opening the debate, Dr. Frank explained that the law was "in search for rational." He took the position that original rationale behind the policy evolved and was based on a number of unsubstantiated claims. At first, gays were, as he said, seen as "unsuitable and weak." After that was proven false, gays were then portrayed as "sinful and mentally ill." This too, failed to convince the public, so gays were then portrayed as "a threat to security." After this claim failed to satisfy the public, gays were said to represent an "invasion of privacy" for straight people and were described as "disorderly." Dr. Frank emphasized that all of these stereotypes were proven false by the service of gays in American wars and were only "denigrating gays." According to Dr. Frank, after World War II, military studies showed that sexuality had no bearing on one’s conduct in war.

He continued to talk about homophobia in the military: straight people were reportedly "uncomfortable" with openly gay individuals, and yet the military is supposed to be a place of risks and uncomfortable situations, such as fighting in war. Dr. Frank noted that 24 countries allow openly gay soldiers in the military, and those countries have not been hurt militarily by such openness. According to Dr. Frank, this "policy of pretend" in America treats the soldiers like children, causes agony for closeted gay Americans, and increases sexual harassment in the military. All of this, in his opinion, is counter-productive for the American military and society as a whole. In a practical sense, the firing of openly gay Arab linguists only hurts America’s potential in fighting Islamic extremists.

Dr. Maue took the opposite position. In support of a military ban on gays in the military, rather than the "flawed" ‘Don’t Ask, Don’t Tell,’ Dr. Maue emphasized that the military defends all citizens, not just straight people, but it also must prioritize. For example, physically disabled people are not allowed to be in the military. In addition, age, height, and weight are taken into consideration in hiring recruits. Another key issue is separation of the sexes, because a crucial principle in the military is avoidance of unnecessary risks and disruptions. For example, you don’t see a male soldier doing a physical check-up on a female soldier. According to Dr. Maue, one doesn’t know what could happen between the two soldiers, but the military doesn’t want to take the "unnecessary risk."

Additionally, Dr. Maue stated that the military’s second important principle is justice, which has “three concurrent laws,” namely intelligible, objective, and universal. He stated that there had to be “separate sexual preference in areas of close body contact,” as shown in the male checkup of a female in the military. Also, he emphasized the fact that “people don’t behave all the time—straight or gay.” According to him, there is no preference for men or women or straights or gays. The military is supposed to be a neutral force. He criticized the Don’t Ask, Don’t Tell policy as "not completely objective and universal," but didn’t mean that he wasn’t for some kind of ban on openly gay soldiers in the military.

This battle is hardly abating. Culture wars regarding the military continue between pro-gay and anti-gay activists. Both sides have thrown out statistics, trying to counter each other and persuade the public to join them. According to Dr. Frank, President Obama has the power to sign a Federal Order that allows openly gay service in the military, but he then must shepherd legislation through Congress to repeal the "Don’t Ask, Don’t Tell." The battle rages on…

Roberts Rules (Part I)

By Shawn Healy

Last Wednesday, I had the distinct privilege of visiting the U.S. Supreme Court and sitting in on a talk delivered by Chief Justice John Roberts. I am a 2001 James Madison Fellow from the State of Wisconsin, and each summer fellows from across the country gather in Washington for a summer institute staged at Georgetown University. As part of the amazing menu of educational offerings, the fellowship arranges a visit with a sitting Supreme Court Justice.

During my summer in DC, Associate Justice Steven Breyer addressed our group. True to my budding qualifications as a First Amendment scholar, I asked Justice Breyer about their recent decision concerning school vouchers. I contrasted separate appeals from Milwaukee and Cleveland (the Court accepted the latter case), and wondered why they balked in the first instance and acted in the second. Hoping that Breyer would point to the political nature of the Court’s maneuvering, he instead elaborated on how the justices are careful to search for the ideal case in order to establish precedents for lower courts to implement.

In the interim, I saw Breyer speak once more at the National Constitution Center in Philadelphia, Justice Ruth Bader Ginsberg at a women’s event in Chicago, and Justice Clarence Thomas as he passed through town on a book tour. Across the board, I was impressed with their intelligence, ability to articulate their vision of constitutional interpretation, and the extent to which they take their responsibility of remaining above politics seriously. Chief Justice Roberts only added to my admiration of the eight men and one woman who preside over the highest court in the land.

Roberts spoke to our group of fifty for nearly an hour in one of two conference rooms adjacent to the courtroom. An undergraduate history major, the Chief showed an impressive grasp of the sixteen men who preceded him. The conference room contained portraits of his eight most immediate predecessors, but he began by paying homage to Chief Justice John Marshall.

Calling Marbury v. Madison the most important decision in the Court’s history, for it established the power of judicial review; Roberts credited Marshall for cementing the credibility of the national government. He served for three decades and was the first to take the job of Chief Justice seriously. Marshall built consensus on the Court and delivered unified opinions in his name, establishing the Court as an independent branch of government.

He also referenced a couple of 20th Century Chief Justices: William Howard Taft and Charles Evans Hughes. Taft is credited with using his political skills to lobby for funding to build the current building, a true temple of law. Hughes presided during the presidency of Franklin D. Roosevelt, whose court-packing scheme rallied the country against the plan, recognizing its threat to judicial independence.

Turning to his present business, Roberts announced that today will be the final session of the current term. As of last Wednesday, seven decisions were yet to be announced, though two followed on Thursday. After 20 years of service, Justice David Souter’s retirement will become official, and the Court as a whole will “rise for the summer.” The justices do not enjoy the summer off, however. They will spend at least part of the time sorting through roughly 9,000 petitions.

The formal portion of Roberts’ remarks focused on the most difficult part of his job. While he acknowledges that many of the cases the Court considers are literally matters of life and death, it is the administrative function of his job that he finds most taxing. He acknowledges that he was not selected for this purpose. He entered a Court that was together longer than any group in history, but found the eight associate justice, all of whom he was junior to, “very welcoming.” They are united by a “spirit of collegiality,” and this made Roberts’ transition to the head of this prestigious body “easier than expected.” While they certainly diverge on ideological grounds, the nine members of the Supreme Court are united by reading the same legal briefs and listening to hours of oral arguments.

Roberts proceeded to entertain questions next, and I will summarize these in a follow-up post on Wednesday.

Iran Fax Project ready to go

By Jamie Loo

Project seeks to aid information flow in event of Internet shutdown.
By Jamie Loo
First Amendment reporter

A fax machine in Chicago may become one of the few links for news out of Iran if the government shuts down the Internet.

As traditional journalists are restricted, detained, or expelled from the country, Iranians and others are sending news, photos and video through social media networks and the Internet. But if the Internet is shut down by the government, the Iran Fax Project, which was started by four University of Chicago students and alumni, is prepared to receive news via fax to help keep the information flowing.

Beth Topczewski, one of the Iran Fax Project founders, said the idea is to have people send faxes to people they trust outside of Iran, then have those sources send the faxes to the Iran Fax Project. Topczewski said they will read through the faxes and remove any identifying information before posting to the Internet. She said they’ve contacted local Iranian activist groups, Facebook groups and college groups on campuses in Iran.

The safest and most secure way to communicate news of the protests is through the Internet, Topczewski said, and the Iran Fax Project is encouraging people to continue doing that until it’s no longer an option. She said the faxes are a “last resort” and that they’re trying to get the word out now about how to reach them in case the government shuts down the Internet. Jonathan Zittrain, one of the co-founders of the Berkman Center for Internet & Society at Harvard Law School, told NPR last week that Iran has a central controlled gateway for Internet access, which allows the government to use filters and block Web sites. Hypothetically, the government could pull the plug on the Internet through this gateway.

The Iran Fax Project has received two e-mails and a photo from Iran. Topczewski said one e-mail and the photo have been posted to their Web site and the second e-mail, which was written in Farsi, is being translated.


Topczewski said she and co-founders Andrew Cone, Eric Purdy and Allie Shapiro, came up with the idea after a late night conversation about the elections. The four are “obsessive” news consumers, she said, and became interested in the Iran election protests. Iranians were desperately trying to communicate what was happening to the outside world and Topczewski said they wondered if there was a way they could help. None of the group’s members have ever been involved in grassroots activism. With their computer science and marketing skills, they had the Iran Fax Project Web site up and running within a few hours.

After word started to get out about the site, Topczewski said they received criticism about the insecure nature of faxes, which can be intercepted. In response, she said the faxing method was changed to involve the extra contact between their group and a sender, in case authorities block or trace the Iran Fax Project number. They’re also asking for people to volunteer their fax lines in case the group’s fax number is blocked. Topczewski said there was a rumor on Twitter that the Iran Fax Project was a trap set up by the government and that they’re tweeting constantly to debunk this and encourage people to send them faxes. Twitter has played a big role in their outreach, she said, and once they started adding hash marks to their posts more activists started to take notice. Hash marks are keyword tags that are aggregated into categories and topics that users can search for and follow.

Topczewski, 20, said she didn’t see the protest news communicated through social media as revolutionary until after they started the Iran Fax Project. As someone who grew up with the Internet and these networks, she said it’s easy to take the power of this technology for granted.

“It’s amazing that through social media we can connect with people halfway around the world,” she said.

Topczewski said that she, Cone, Purdy, and Shapiro have each developed their own opinions about the Iranian elections and that the Iran Fax Project didn’t spring from a single political point of view. She said politics, candidates and elections have to be separated from ideals like freedom of speech. Freedom of speech is a human right, she said.

A social media revolution?

James Ettema, a Northwestern University media, technology, and society professor, said it remains to be seen whether what’s happening in Iran will be considered a large scale social media movement. Some of it will depend on whether social media networks like Twitter can stay one step ahead of the repressive government to keep the protest movement alive. Ettema said another example of Twitter’s use as a news source came during the attacks in Mumbai, India last November as eyewitnesses reported on the unfolding tragedy.

Looking back at media history, Ettema said “the relationship between technology and social change is definitely there.” In Iran during the 1970s, Ayatollah Ruhollah Khomeini’s used audio cassette tapes to spread his revolutionary messages against Shah Muhammad Reza Palavi, he said. The Shah was overthrown in 1979. Television played a role in the U.S. civil rights movement, Ettema said, by broadcasting images such as police unleashing dogs and water hoses on protestors.

Traditional media is amplifying social media’s rise and importance as a source of information, Ettema said. For example the YouTube video of Neda Soltani’s killing quickly circulated on the Internet and her story was picked up by the mainstream media. Since her death, Soltani has become a symbol of the Iranian election protest movement. Ericka Menchen-Trevino, a Northwestern doctoral student in media, technology and society, said one of the challenges of social media is sifting through the massive amounts of information to find the truth. She said people interested in the bigger picture are turning to bloggers and journalists to make sense of that noise.

But the credibility of social media as sources is something journalists are still grappling with, Ettema said. He said journalist who use social media networks as sources tend to add disclaimers into their stories noting that the information is unverifiable. But if hundreds or thousands of people are Twittering that they are witnessing the same thing, Ettema said it doesn’t make sense for journalists to discredit it. Journalists have traditionally used “man on the street” interviewing for information, he said, and already make these types of judgment calls every day. Ettema said journalists will need to learn to adapt and keep up with social media.

Sidebar: How to Help

Beth Topczewski, an Iran Fax Project Founder, said they’re still looking for volunteers who can translate Farsi and more fax line numbers to receive faxes when they start coming in. For more information, visit http://iranfax.org/.

Finding Jefferson

By Shawn Healy

I am not alone in my admiration for America’s first and truest “Renaissance Man,” Thomas Jefferson. As our nation nears its 233rd birthday, yet struggles with issues our founding fathers never imagined, we look to men like Jefferson for age-old guidance in turbulent times. His resume is well-recorded elsewhere, but Alan Dershowitz, Harvard Law professor and accomplished attorney, offers a though-provoking take on freedom of speech in the Age of Terrorism via a stunning discovery in Finding Jefferson (2008, John Wiley & Sons).

Dershowitz begins by establishing himself as a collector of a wide array of historic artifacts and artwork. He proceeds to lay down his legal credentials and intellectual interests. This includes a fascination with the writings of Thomas Jefferson, much of it preserved in correspondence via letters to a broad swath of the populace. Dershowitz’s worlds literally collided at Argosy Book Store on the Upper East Side of Manhattan in September 2006. He was persuaded to purchase a letter from Jefferson to Connecticut politician Elijah Boardman during the first days of his presidency in 1801.

Jefferson wrote in response to a sermon delivered by Reverend Stanley Griswold. His remarks crossed the line between faith and politics, calling for punishment of speech that is “immoral” or “dangerous.” Such prior restraints on speech may sound severe to contemporary observers, but were common at the time. The Alien and Sedition Acts are but two of the relics of an era when freedom of speech was in its formative state. Jefferson opposed Griswold’s teachings, favoring a libertarian model where the first acts inspired by incendiary promptings invited punishment, nothing sooner.

This after-the-fact form of punishment is challenged in an era of global terrorism. Is there no limit to what an imam can preach for those who use the Islamic faith as a means of violent revolution? Under Jefferson’s model, we would not intervene until a terrorist act is committed, an approach that would endanger the lives of hundreds, if not thousands. Dershowitz, while sympathetic to Jefferson’s civil libertarian leanings, argues for a middle ground approach, yet fails to offer a hard and fast test, probably because the issue is admittedly complex.

Dershowitz presents an interesting dichotomy between what he calls the “taxi cab theory of free speech,” where a government must entertain all forms of speech just as a cab driver must pick up all customers and deliver them to the location of their choice, and a “system of censorship,” where the government effectively picks winners and losers. He suggests that the latter “produce(s) terrible results,” yet perhaps a hybrid form of this model must prevail in an Age of Terror so long as the system is employed “fairly” and “equitably.”

The author alludes to the Nazi’s attempt to demonstrate in Skokie, IL, in the late 1970’s, suggesting that ordinances to silence this disturbing form of speech could have been used to stymie civil rights marchers, too. Modern laws curtailing hate-spewing imams would also hamper anti-abortion and anti-war protesters. Such “blunt instruments” may not even prevent violence and are easily evaded.

I’ll end with a couple of direct quotations from Dershowitz as he turns to Jefferson once more:

“There is no risk-free option. We must choose between the real risks of terrorism and the equally real risks of censorship.”

“Let us hope that Jefferson’s admonition to Reverend Griswold to trust the ‘good sense’ of his fellow citizens and ‘go the whole length of sound principle’ by rejecting the seductive lure of the censor will remain the American way even in the face of bloody terrorism.”

Iran's Reliance on Twitter

By Jenn

Following Iranian President Mahmoud Ahmadinejad’s successful re-election last Friday, protests erupted throughout the country, calling for a recount. Protesters believe that the election was rigged, claiming many of Ahmadinejad’s supporters in the last election voted for his opponent, Mir Hossein Moussavi, this time around. The protesters say that the high voter turnout – up by more than 30% since the previous election – is an indication that Iranians wanted to see change in their government. The protests have resulted in reports of injuries, casualties, and riots.

Looking past the validity of the actual results, however, we begin to see the realities of the governmental influence over the Iranian people’s freedom of communication. The government, in an effort to stop large organized demonstrations and dissidence, blocked Internet sites such as Facebook and Twitter, and has disabled SMS text message communication throughout the country.

The administration also restricted international news reporting on the events. Unable to report directly, many mainstream media sites, such as TIME.com and CNN, have received pictures, videos, and news reports from inside Iran, although they acknowledge that they cannot independently confirm these reports. CNN also assures that they will not identify their iReporters that are inside Iran for safety reasons.

News-starved Iranians are now taking advantage of nontraditional outlets to circulate and receive updates from across the country. Due to Twitter’s broadcast capabilities – tweets are far more public than e-mail or Facebook – and it’s ability to be accessed via the Internet and SMS, Twitter has emerged as a leading resource for those individuals wanting to make their voice heard in the chaos.

Although the government blocked the official Twitter site, many proxy sites appeared, allowing users to access the site via other portals and remaining undetected. Now, as the government identifies and blocks many of the proxy servers as well, Iranian Twitterers found a trap door from an unlikely supporter. The Global Internet Freedom Consortium, a Chinese-led effort to evade the Communist censorship in China, is the Iranians’ best hope to accessing blocked Internet sites, according to New York Times contributor Nick Kristof. The Consortium “doesn’t have the heart to cut off the Iranians”, but could potentially resort to limiting the use due to fear of a server overload. On Wednesday, the server experienced over 200 million hits, representing more than 400,000 people.

New questions have arisen out of the Iranian election protests: What is the role of government in overseeing the Internet? Should access to cell phones, the Internet, and other advanced technologies be considered a human right? New Democratic Network founder and Washington politico Simon Rosenberg poses this question in a recent blog post, wondering if political freedom can exist in a civil society without one’s mobile device. The United States has so far been hesitant to take a position on this, although small steps have been made in that direction.

On Monday afternoon, U.S. State Department official Jared Cohen contacted Twitter, asking that they delay the scheduled maintenance on their site, so as not to disrupt the overwhelming quantity of Twitter streams reporting on the riots in Iran. Twitter co-founder Jack Dorsey agreed to postpone the update until Tuesday afternoon, which equated to 1:30 am on Wednesday in Tehran.

Reporters and politicians alike have taken this action as a sign that the new administration is continuing to embrace the merits of modern technology. This small interference from the State Department speaks volumes about the United States’ commitment to extend the rights of the First Amendment to those outside of the fifty states. There is currently an “Internet freedom initiative” still pending in Congress; if approved it would allot $50 million in the appropriations bill for censorship-evasion technologies, similar to those the Chinese Consortium is using.

The protests in Iran continue, largely with the organizational assistance provided by modern technology. It is uncertain how long Iranians will remain in the streets, but one thing is becoming clear – the face of oppositional demonstration has been forever modified.

Free Speech Has a Price

By Timothy J. McNulty

Are you riled at Bill O’Reilly? Seriously mad at Rachel Maddow? Can’t stand Glenn Beck?

Chatterers on cable shows, talk radio and Internet blogs are promptingsome Americans to worry that these electronic public criers arecrossing the line from routine rhetorical clashes between liberals and conservatives into something closer to hate speech or outright sedition.

Most of the time, the verbal battles between commentators such as Rush Limbaugh and Keith Olbermann, for instance, are little more than political entertainments. They provide amusement to listeners and material for Comedy Central to skewer the talk giants of CNBC, CNN and the Fox News Channel.

But several weeks ago opponents complained that anti-abortion rhetoric, especially but not solely from Bill O’Reilly, is fomenting an atmosphere that led to the killing of the Dr. George Tiller, an abortion provider in Kansas. Others railed that racial and anti-Semitic rhetoric is partly responsible for the gunman who recently stormed into the National Holocaust Memorial Museum in Washington and killed a guard.

Some fear that these public commentators, not elected and not responsible to anyone but their audience and advertisers, are stoking unprecedented hatred and division among Americans. The New York Times columnist Frank Rich suggested this week that he is not alone in worrying that fanatics listening to such vitriol might act out their fantasies against President Obama or others in authority.

The angry politics of the last decade, since the disputed 2000election of President George W. Bush, worries others that American society is changing for the worst and could destroy itself. Even those less apocalyptic claim the rise in invective represents a loss of civility.

Then suddenly another event showed the excesses that come with freespeech are nothing compared with the absence of free speech.

Demonstrators poured into the streets of Tehran this week to protest their own disputed election. But quickly Iranian police began shutting off communications, tossing out foreign journalists, closing Internet websites and blocking cell phone traffic.

As protests continue, the government appears to be heading to even more restrictions and more arrests. In comparison to that struggle, even the most vitriolic conversations on American talk shows seem nothing more than, as one scholar put it, a "necessary evil" in order to guarantee free speech for all.

For sure, there is a public demagoguery now that has a lot in common with the language of the anti-Semitic and anti-Roosevelt radio priest, Father Charles Coughlin, who ranted from the Shrine of the Little Flower in Royal Oak, Mich., to tens of millions of listeners in the1930s.

Such extreme language is becoming more common and familiar in the 24-hour news and opinion cycle. Whether on television channels, on the radio and on newspaper websites, charges barely have time to be heard and read before they are answered with counter-charges. When Limbaugh insists he wants the president to "fail," for instance, a chorus of Obama supporters quickly describe such talk as treasonous.

But the history of the United States is one of raucous debate, of political opponents blasting outrageous and unfounded denunciations. Public discussion was routinely tough and biased. Claims against political figures have been painful and completely unfair, yet Americans accepted that as the cost of doing democracy.

While political invective may seem dangerous and dastardly to our modern ears, such rancor was common even at the beginning of our nation.

Newspapers became more responsible (you might also describe them as tame) in the last century, but the kind of speech that the country’s earliest politicians wanted to protect was not polite, not responsible and certainly made people’s blood boil.

John Adams and his vice-president, Thomas Jefferson, were not timid political souls and the rancorous language (was Jefferson really"godless”) that their supporters used against each other was just the beginning. Over history, public figures called their opponents traitors and cross-dressers, crooks and pedophiles.

But the founding fathers understood that much was at stake, that the enterprise of forming a new nation could only be accomplished by allowing genuine freedom. Of course, everyone understands there are limits to free speech, but the complaints against today's public commentators are not the equivalent of wartime censorship rules or yelling “Fire!” in a crowded theater. The rhetoric of today doesn't exceed anything in the past, though the technology behind this super-heated conversation has changed.

The passions that scorched the pages of competing newspapers and pamphlets in the past are still present. But the Internet, with its chat rooms and comment sections that are open to all anonymous postings, creates an electronic mob. People shout across the nation from the protection of a faceless crowd and stir even more passion or fuel more hatred.The argument for maintaining anonymity on the Internet is that it is the ultimate freedom to be heard (or read) and that anonymity guarantees that those who speak out against the government or anyother authority need not fear retribution.

“The speech we dislike and believe harmful may still be offered shelter within the first amendment; but, if it is, it will generally be regarded as a necessary evil protected because we believe we are fallible—we cannot eradicate speech we believe as harmful and debasing without diminishing that which is beneficial.” The writer, Lee C.Bollinger, a First Amendment expert and now president of Columbia University, wrote that nearly two decades ago, about the time the Internet was coming to widespread civilian use.

Considering our fears about the consequences of free speech, what a tremendous juxtaposition it is to see the images and stories comingout of Iran during the past week.

The citizens of Tehran and other cities are eagerly protesting on the streets and telling the world through blogs and YouTube, through email, cell phone videos and Twitter, of their grievances over the disputed election and it is producing real consequences for them.

Just as evident as the protests is the Iranian government’s attempt to shut down the demonstrations and the social media networkthat is helping fuel the anger.

There is, I suspect, a universal desire to speak freely, to have an open flow if information and the right to gather and complain. As the citizens of Iran are showing the world, the desire for freedom is strong and, even though the speech that we are hearing in our own country is sometimes “harmful and debasing,” we have learned to live with it.

Putting up with all sorts of language, we have decided collectively, is still worth the price of democracy.

Defending in silence

By Jamie Loo

First Amendment reporter

After spending three months in thigh deep mud, in cramped quarters with no showers, Bridget Altenburg’s U.S. Army unit finally left Albania and arrived back in Germany. As a band played in the background, Altenburg walked past the crowd of families hugging and kissing their loved ones to drive herself home and be welcomed by her family. Her girlfriend, also a military service member, was waiting at their apartment.

It was a reminder of the secret life Altenburg had to live in order to pursue her goal of having a lifelong career in the military. Even before that day, Altenburg said she knew she couldn’t live like that any more and it cemented her decision to leave.

Altenburg said she is among the thousands of gay and lesbian service members who have voluntarily left the military because of the “Don’t Ask, Don’t Tell” policy. Nearly 13,000 service members have been discharged under the law since 1994, according to the Servicemembers Legal Defense Network, a non-profit organization that aids those impacted by the law.

During his campaign, President Barack Obama said he would repeal the policy but has remained mostly silent on this issue. The U.S. Department of Justice filed a brief in court supporting the Defense of Marriage Act recently and asked the U.S. Supreme Court not to take a case challenging the law. Meanwhile more gay service members such as Arabic linguist Lt. Dan Choi and decorated pilot Lt. Col. Victor Fehrenbach have gone public with their discharge cases, urging Congress and Obama to repeal the law.

While supporters of a repeal say that the military is losing qualified gay and lesbian service members, opponents say upholding the ban is necessary to preserve unit cohesiveness especially in a time of war.

‘An officer shouldn’t lie’

Altenburg said she always thought she would have a lifelong career in the military like her father. She grew up on Army bases around the world and followed in her brother’s footsteps to the U.S. Military Academy at West Point where she graduated in 1995. In her time as an engineer officer between1995 and 2000, Altenburg was deployed to the Balkans three times and was a reservist until 2006 when she gave up her military commission. While she was at West Point and on her first two tours of duty, Altenburg said there was an environment that allowed some gay and lesbian name calling and jokes, similar to what probably takes place in a locker room. She said she didn’t realize she was gay until 1997 and that’s when the deception began. When soldiers’ personal lives came up in casual conversation, Altenburg said she had to play a constant “pronoun game” to answer questions. For example, if someone asked Altenburg if she was dating someone she would say, “Yes, they’re wonderful,” instead of saying he or she.

“I remember I used to wear my grandmother’s engagement ring just to keep people from asking me questions,” she said.

Over time, the games became more difficult to play especially as Altenburg formed close bonds with other soldiers. The people that you serve with are like family, she said, and she had to lie to them. One time an old friend from college who she played on a sports team with was stationed with her unit. Altenburg said she wanted to re-connect with this friend and be honest about her personal life. After Altenburg told this friend she was dating a woman, she never spoke to Altenburg again. For months, Altenburg worried that she would get a phone telling her that she was under investigation for being gay. She didn’t tell anyone else she worked closely with after that experience.

“I certainly didn’t know if that was going to be the way I was going to be kicked out of the Army. Because I told a friend I was dating a woman and she turned me in,” Altenburg said. “Luckily, that didn’t happen but it certainly happened to thousands of other soldiers.”

In a culture that teaches you that “an officer shouldn’t lie,” Altenburg said she was constantly finding ways to hide the truth. She said it was a tough decision to turn her back on the only career she had ever known but in the end she knew could never be herself if she stayed. Because of her upbringing, Altenburg said she originally had an attitude that “the military could do no wrong” and that if she couldn’t serve in silence that it was her fault for not being able to handle it.

“I was in the closet so I didn’t know there were thousands of people that were trying to live the same way that I was trying to live, and struggling and getting kicked out or just leaving on their own,” she said.

Through her involvement with SLDN and Knights Out, an independent group of West Point alumni, staff and faculty who support rights for gay soldiers, Altenburg said she began to realize how damaging the Don’t Ask, Don’t Tell law really is. It gives the perception that “as long as you keep it to yourself, you’ll be OK,” she said, and that nobody can ask you about your sexual preference. But in reality Altenburg said many soldiers are kicked out because suspicions that they are gay lead to investigations. For example, a photo on Facebook at a gay pride parade can lead to an investigation, she said, or a service member can turn in their fellow soldier because that person is living with someone of the same sex. In working with SLDN, Altenburg heard one story where a civilian wrote to their former lover’s battalion commander to out them.

When the military finds out someone is gay, Altenburg said the service member has two options. She said they can leave quietly with an honorable discharge or fight it, with the chance that they could be given a dishonorable discharge. A dishonorable discharge means you could lose some of your benefits, Altenburg said, and could affect your chances of getting a job. It’s a scary way to live your life, she said.

“I know plenty of people are serving openly to their fellow soldiers but you never know when you’re going to run up against someone who has a problem with that and then it’s all over,” she said.

A big mistake

Elaine Donnelly, president of the Center for Military Readiness, said it would be a mistake for Congress and the president to repeal the ban on gays serving in the military, especially when the country is fighting two wars. Donnelly said the commonly referred to Don’t Ask, Don’t Tell policy isn’t consistent with the Military Personnel Eligibility Act of 1993, which is a law. She said the law says that homosexuals are not eligible to be in the Armed Forces and that it’s been confused with this idea that serving in silence is acceptable. Military service isn’t a constitutional right, Donnelly said, and many groups aren’t allowed to serve. The military has criteria such as age restrictions, weight standards and physical health issues that exclude many people from serving.
Donnelly believes that thousands of service members would leave and choose not to re-enlist under a variety of circumstances that would arise from a repeal of the law. Heterosexual service members would be forced to live in close quarters with gay service members who may be attracted to them, she said, and units would have to deal with more disciplinary issues from female to female, or male to male conflicts. Non-discriminatory language in a law would extend the “zero tolerance” policy to dissent about homosexuality, Donnelly said. Service members who have complaints about inappropriate conduct by gay soldiers may be unwilling to step forward because their personal attitudes about homosexuality could have career repercussions. Donnelly said everyone would have to accept homosexuality, which would force many people to leave voluntarily.

Although advocates for repeal say that more people are accepting of gays serving in the military than before, Donnelly said civilian attitudes shouldn’t affect military culture and policies. For example, to a civilian “unit cohesiveness” means getting along with one another, Donnelly said. But in the military it means much more because your life is constantly in danger and you have to trust your fellow soldiers and commanders for survival, she said. Donnelly said the Military Times, a publication for active-duty service members, conducted a poll in 2008 which found that 14 percent of respondents said they would consider leaving the military if the Military Personnel Eligibility Act was repealed. Another 10 percent said they wouldn’t re-enlist. Donnelly claims that losing even a few thousand mid-level officers and non-commissioned officers would mean a loss in leadership for the future and a smaller force at a time when the military is trying to retain service members.

“This is a volunteer force and we can’t require people to stay,” she said.

Donnelly said there is no proof that repealing the law would help the military and that it would cause a major disruption instead. She said more than a thousand retired Flag and General Officers for the Military signed a letter earlier this year asking Obama and Congress to uphold the ban.

“We believe that imposing this burden on our men and women in uniform would undermine recruiting and retention, impact leadership at all levels, have adverse effects on the willingness of parents who lend their sons and daughters to military service, and eventually break the All-Volunteer Force,” the letter said.

But Altenburg said the law is already impacting military readiness. It costs millions of dollars to train service members, she said, and it doesn’t make sense to lose qualified and highly specialized soldiers just because they’re gay. She said thousands of gay and lesbian soldiers are already serving in the military. Many U.S. allies such as Great Britain allow open service by gay soldiers, she said, and it hasn’t destroyed their military. Altenburg said the American military has handled much more challenging situations and feels the military should be able to “support open service without falling apart at the seams.” About three years after she left the service, she found out that one of the specialized units she served with knew that she was a lesbian. A non-commissioned officer in that unit told Altenburg that they all knew and didn’t care.

“What effects unit cohesion and military readiness more than people serving in silence is when you’re lying,” she said. “It’s like a family…people can tell when you’re lying.”

The Uniform Code of Military Justice already has provisions that deal with professional standards and disciplinary issues, Altenburg said, which address many of the concerns opponents have cited. Altenburg said the ban has caused many young gays and lesbians to not even consider a military career, which hurts recruitment efforts.

Altenburg, who has gone to Washington D.C. to lobby Congress to repeal the law, said education and awareness for the cause among lawmakers has grown since her first trip there three years ago. She said that it’s “only a matter of time” before a bill is passed to allow gays to openly serve. Donnelly said recent statements by the current administration show that a repeal of the law is unlikely in the near future.

Although she is happy with her life in Chicago, Altenburg said there is a part of her that will always wish she “could serve again in a different time.” She said she knows many former service members who say they will be back in their recruiter’s office to serve again if the law is repealed.

“There’s a reason that you serve your country,” she said. “That desire to serve your country always stays with you.”

Bigotry or safety?

By Jamie Loo

Rezoning denial leads to conflicting views about board’s decision.

By Jamie Loo
First Amendment reporter



Wajahat Sayeed said there was simply no reason to say no.

So when the Plainfield Village Board voted 3-2 last week to deny a rezoning that would have put Sayeed one step closer to converting a building to a school, he suspected other motives for the decision. The Furqaan Academy president said he suspects it’s because he is building an Islamic school and called the board’s action “unfair” and “bigoted.” Both the Plan Commission and village staff gave the rezoning a favorable recommendation.

But village trustee Garrett Peck, who voted against the rezoning, said his vote had nothing to do with religion and was linked to safety concerns. He said the building at 14912 S. Eastern Ave., in Plainfield is about 90 feet from railroad tracks which regularly have heavy traffic.

While Sayeed says a flawed hearing process and prejudice is evident, village trustees say the rules were followed and that they are disappointed at being portrayed as intolerant.

Sayeed said the board voted on the rezoning without any discussion or questions, and board members didn’t give the reasons behind their votes. An approval of the rezoning would have led to the next step in the process, he said, which would be for a special use permit to renovate the building into a school. The academy opened last year at a temporary location in Bolingbrook and had 33 students enrolled from pre-kindergarten through sixth grade. Sayeed said they’re estimating 60 students for the 2009-2010 school year. The board didn’t discuss the school’s merits for a special use permit because of the rezoning denial, he said.

“If we had a fair hearing we would probably be OK with it,” he said.

Plainfield Mayor Michael P. Collins, who presides over the village board meetings, said rezoning doesn’t require a board hearing, according to municipal code, after a public hearing is held at the Plan Commission level. The proposal did receive a hearing at Plan Commission, Sayeed said. The special use permit received a favorable recommendation from village staff but the Plan Commission had a split vote, with the majority of the commission voting against the permit and the school’s site plans. Collins said there was nothing unusual about the village board’s meeting. Board members occasionally give their reasons before a vote, but are not required to.

“I know there’s been inferences by the applicant that the board had other reasoning, but that’s just speculation on his (Sayeed’s) part,” Collins said.

Peck, who also serves on the village’s Plan Commission, said there were no engineering, traffic, lighting, or playground plans and that records show the building contains asbestos. The trustee said he would not approve any school or facility that would endanger the lives of children. Attempts to reach trustees Margie Bonuchi and Larry Vaupel, who also voted against the rezoning, were unsuccessful.

But Sayeed said structural engineers have examined the building and they would renovate it to meet Illinois school building requirements. From inside the building the trains are not that noisy, he said, and they planned to add more sound proofing material. Sayeed said they also planned to put fences around the school. It’s ridiculous for the village trustees to think he would place students in a dangerous situation, he said, or in a school that would be too noisy for them to learn in. Sayeed said he would’ve been willing to take the village trustees on a tour of the building with engineers if they wanted more information.

Trustee Bill Lamb, who voted in favor of the rezoning, said the area has both residential and industrial zoning and that it needs to be reconciled in some way. He said it’s hard to do anything with that building because of its unusual location. Collins, who doesn’t usually vote unless there is a tie, said if he had to vote he would have denied the rezoning because the building is too close to the railroad tracks. He also noted that the trustees voted specifically on the rezoning and not against the school itself.

“If they (Furqaan Academy) find another location they would certainly be given another opportunity and consideration,” Collins said.

The school is working with its attorneys, Sayeed said, and that they’re exploring “every and all options.” He said in the past some suburbs have tried to block mosques or Islamic centers from moving into their communities but he isn’t aware of any other Islamic schools in the area that have faced resistance. In 2004, a local group waged a bitter battle with some Orland Park residents over the building of an Islamic prayer center. The Orland Park village trustees unanimously allowed a special use permit to build it, according to The Star. The Al Salam Mosque Foundation also faced opposition in 2000 when they tried to obtain a zoning permit to build in Palos Heights.

Sayeed said they chose Plainfield because there is a growing Muslim population and it seemed like a family friendly place. But after this experience, Sayeed said the school may look for another community that is more tolerant of their beliefs.

“We only wanted fairness, not special treatment,” Sayeed said. “But I don’t think we were given that fair treatment.”

Peck said he will not be intimidated by Sayeed’s allegations, nor anyone else that proposes a project that could pose a “threat to the health and safety of children.” He said no one should insinuate prejudice without any evidence “as a way to fight our system of government.”

“This kind of childish behavior only sets back our community and makes it harder for real victims to bring a case forward,” Peck said.

James Racich, a trustee who voted for the rezoning, said he is offended the trustees are being characterized as racists and unfair. He said this also affects how others view Plainfield. Although the final result isn’t what he voted for, Racich said the proposed rezoning went through the democratic process and that the decision should be respected. Racich said he has no problem with an Islamic school and that he has always felt discrimination against any group is wrong. Plainfield has Lutheran and Catholic schools, he said, and the community is open to embracing diverse beliefs.

“We have room for difference,” he said.


SIDEBAR: What is an Islamic school?

Wajahat Sayeed, president of Furqaan Academy, said an Islamic school is similar to a Catholic school. He said students at Islamic schools learn from curriculum that meets state standards and are also offered lessons such as Arabic. Just as Catholicism is infused in the learning experience, Sayeed said Islamic culture and religion is part of helping students develop their religious identities. He said the Chicago area has 15 other Islamic schools and that the Muslim community has been well established here for many years.

A Tale of Two Seconds: Chicago and the Right to Keep and Bear Arms

By Shawn Healy

Last Tuesday, a three-judge panel of the Chicago-based Seventh Circuit U.S. Court of Appeals refused to strike down local gun ordinances in the city and Oak Park on the grounds that the “Supreme Court has rebuffed requests to apply the Second Amendment to the states.” This represents only the middle chapter of a narrative that involves two other appeals courts, a Supreme Court nominee, and the future of the Second Amendment right to keep and bear arms at the local level.

The story begins with the June 2008 high court decision that nixed a similarly restrictive firearms law in the District of Columbia. In ruling that individuals have a right to keep and bear arms under the Second Amendment, the Court cast aside the prevailing collective right interpretation which deferred to the formation and maintenance of militias by individual states. However, given that the District of Columbia is exclusively a federal territory, this precedent (at least for the time being) does not apply to state and local laws.

On the heels of this landmark decision, the National Rifle Association (NRA) felt emboldened to push the envelope and engage in the process of “selective incorporation” where elements of the Bill of Rights, the this case the Second Amendment, are applied to the states and municipalities located within. Of the first eight amendments to the Constitution that concern individual rights, only the Second, Third, and Seventh Amendments have yet to be applied to the states.

The NRA appeared to operate on fertile ground within the Seventh Circuit given that Reagan appointee Frank Easterbrook teamed with Richard Posner, the most cited lower court judge and a conservative heavyweight in his own right, and William Bauer, another Republican installment. Instead, the trio exercised judicial restraint by refusing to “strike off on its own,” refusing in their words to “undermine…the uniformity of national law.”

The NRA has already appealed, accepting Eastbrook’s invitation “for the Justices rather than a court of appeals” to consider incorporation.

Enter Sonia Sotomayor. Should the Supreme Court grant them a hearing, President Obama’s first Supreme Court nominee, Judge Sotomayor, is likely to be seated and weigh in on the verdict during the 2009-2010 term that begins in October.

Labeled “anti-gun” by the Gun Owners of America and taken to task for refusing to negate a New York weapons law on Second Amendment grounds, Sotomayor will face harsh scrutiny from conservative organizations and Republicans in the Senate who will consider her confirmation.

Pardon the pun, but Sotomayor’s critics lost some of their ammunition in the wake of the Seventh Circuit’s ruling. The fact that Easterbrook and Posner arrived at the same conclusion as Sotomayor shows that she too exercised restraint, not the widely shunned “judicial activism” that equates to a four-letter word in many conservative camps.

It is interesting to note that the Ninth Circuit did take an activist plunge and apply the Second Amendment to an Alameda (CA) County gun ordinance. Given the circuit conflict that now exists between Sotomayor’s Second, paired with Easterbrook’s Seventh, the Supreme Court’s intervention is all but inevitable.

A 5-4 conservative majority led by Justice Antonin Scalia produced the landmark 2008 ruling in favor of an individual’s right to “keep and bear arms,” and this coalition remains in tact even with the addition of Sotomayor as retiring Justice David Souter was a member of the liberal dissenting bloc. Incorporation of the Second Amendment seems inevitable, with or without Sotomayor, though these fireworks are sure to color her confirmation hearings beginning next month.

Closer to home, the Chicago and Oak Park gun ordinances hang on by a thread, left in the hands of nine men and women donning black robes. Local citizens will have a front row seat and watch with pressing interest as the case, confirmation, and courtroom drama proceed on separate, but sometimes intersecting, paths.

A Civic Blueprint for Illinois

By Shawn Healy

Justice David Souter, in a May 20, 2009 speech at Georgetown Law School, called for "the restoration of the self-identity of the American people." To accomplish this, the retiring jurist said we should begin by “re-educat(ing) a substantial part of the public." Souter committed himself to lending a hand in revamping the civics curriculum in public schools across his native New Hampshire.

In Illinois, the Civic Mission Coalition is doing its part to champion Souter’s cause. This past February, 80 civic leaders, policymakers, educators and civic-minded students conducted a three-day conference in Wheaton sponsored by the McCormick Freedom Museum. As a result, the conferees created The Civic Blueprint for Illinois High Schools. The Blueprint outlines recommendations in six key areas that can be adopted in every high school in the state. These include:

*Requiring formal instruction in American government, law, and democracy as well as U.S. History in a comprehensive social studies program

*Endorsing the discussion of controversial issues in the classroom

*Endorsing the inclusion of service learning as an effective teaching tool and encouraging projects and experiences where students have a legitimate voice

*Encouraging schools to conduct a baseline assessment of their current extracurricular activities to determine how these activities offer students an opportunity to examine local issues

*Encouraging school administrators to support a student-created High School Bill of Rights and Responsibilities in their districts which would be subject to annual review and amendment

*Integrating democratic simulations in the classroom with real-life experiences and supporting the invitation and involvement of elected and appointed public officials in school classrooms and activities

Thanks to the help of dedicated educators, administrators and public officials, along with organizations like the Illinois Civic Mission Coalition, our state already has five schools that have been recognized as Democracy Schools. These schools offer civic learning opportunities to their students across the curriculum. Our goal is to increase the number of Democracy Schools in Illinois, by working with key stakeholders to create policies that will ensure all Illinois high schools will become Democracy Schools.

We ask that you read the report which contains a brief summary of the February conference, followed by the Civic Blueprint. Also, please visit the complementary Website at www.FreedomMuseum.US/DemocracySchools. The site contains additional resources, including information on exemplary organizations and schools that provide integrated civic education programs, along with a calendar that tracks professional development opportunities for educators and administrators. Finally, lead or encourage your local high schools to implement the Civic Blueprint in pursuit of Democracy School status.

Tiananmen Square remembered

By Jamie Loo

Panel reflects on 20th anniversary and future of political change in China.

By Jamie Loo
First Amendment reporter

EVANSTON— Unfurling a protest banner in Tiananmen Square is likely to put you on the other side of the law.

Without official approval from the Chinese government, public displays of dissent could land you in jail.

It’s one legacy the spring of 1989 left on China, when thousands of students, workers and Beijing residents converged on Tiananmen Square for several weeks to call for government reform and economic change. The protests culminated in a massacre on June 4, when the Chinese military used violent force to wound and kill civilians with guns and tanks. The actual death toll from the incident remains unknown and estimates range from hundreds to a few thousand.

Even as China grows in international status as an economic superpower, the Communist Party’s repressive control over citizens remains strong 20 years after the Tiananmen Square massacre. Northwestern University held a symposium this week to reflect on the impact of the historical event and whether political change is possible in China.

U.S. Secretary of State Hillary Clinton released a statement Wednesday urging Chinese authorities to openly examine the massacre and to provide a list of those who were killed, detained or missing. Clinton said the 20th anniversary is an opportunity for Chinese authorities to release people who are still in prison serving sentences in connection with the 1989 protests.

“We urge China to cease the harassment of participants in the demonstrations and begin dialogue with the family members of victims, including the Tiananmen Mothers,” she said. “China can honor the memory of that day by moving to give the rule of law, protection of internationally-recognized human rights, and democratic development the same priority as it has given to economic reform.”

Victor Shih, a Northwestern University assistant professor of political science, said Tiananmen Square showed the Chinese government that they needed to find less violent ways to suppress uprisings and dissent. New technology and training has allowed the government to be more effective in monitoring and repressing its citizens. In the past 20 years, Shih said the government has trained a variety of different police forces, which have a visible presence in Beijing around Tiananmen Square. Anti-riot gear, gases and rubber bullets are among the equipment that police forces now have at their disposal to suppress protests. Local agents are trained to contain uprisings at all costs, Shih said, sometimes begging protestors or buying them off. Even the most provincial capitals have their own Rapid Reaction People’s Armed Police Force, which can be deployed with equipment such as helicopters and armored personnel carriers any where in the province in 24 hours.

Although the Internet can be an avenue for more coordinated protest efforts, Shih said the government has also spent a lot of money on Internet censorship. He said the government can plant cookies in computers to monitor what Web sites people visit, track cell phone calls, and regulate Internet access.

“There’s always this technological arms race,” he said.

In the days leading up to anniversary, China blocked access to Web sites and news stories with references to Tiananmen Square, according to media reports. Twitter, a social networking site, blogs and other chat sites were also reportedly inaccessible to China’s residents.

Prior to and after the Tiananmen Square protests, government forces recorded mass incidents, which are protest gatherings of 50 to 100 or more people. Shih claims these mass incidents have been increasing, estimating that were a few thousand in the early 1990s and tens of thousands by the early 2000s. He said many of these protests happened in rural areas, ranging from peaceful protests to violent affairs such as the burning of a police station.

But it doesn’t matter how many protests are staged, Shih said, because the government has the ability to suppress them. Carrying out this repression, however, requires the cooperation of local agents, he said, which he envisions will become more difficult in the future. Although the government pays these local forces to do their bidding, Shih said local agents bear emotional and psychological costs from being hated by people in their communities. He said if there’s a “shock” in the system, such as a massive economic downturn things can change very quickly. At some point police forces won’t be willing to suppress protest any more, he said, which is what happened in places like eastern Europe when the Soviet Union was collapsing. In 1989 during the Tiananmen Square protests, Shih said many local officers refused to act because they didn’t want to shoot at people they knew personally.

Right now many things in China are tied to money, said University of Wisconsin-Madison political science professor Ed Friedman. Broader economic freedom and more private space have provided an opportunity for Chinese citizens to be less concerned about political change in their day to day lives. Stefan Henning, visiting professor in Northwestern’s anthropology department, said most of the mass incidents in China today are centered on economic and quality of life issues, not democracy. He said as long as people’s lives are bearable these incidents will likely decrease and won’t necessarily lead to a call for democracy. Shih said if the government missteps­­--for example confiscating property and re-selling it to speculators--then mass protests may lead to political change.

Friedman said China wants to be seen as a moral power in the world but the nature of the authoritarian regime prevents this internationally. If democratization started in 1989, Friedman said China would probably be seen as a global leader today. Friedman feels the Tiananmen Square massacre has “constrained China’s rise” and has made other countries leery of it as the country’s economic power grows. It also affects diplomatic relations, Friedman said, because China is suspicious of all U.S. approaches at cooperation. For example, when President Barack Obama suggested that the two countries work on climate change, Friedman said the Chinese government reacted with concern that the U.S. may be trying to undermine China’s growth or embarrass it on the world stage.

Wang Dan, one of the key student leaders in the 1989 movement at Tiananmen Square, said before true political change can take place there needs to be a cultural change in the way Chinese citizens view nationalism and the communist party. To the younger generation, Wang said nationalism means the government shouldn’t be criticized. He said there’s not much of a separation between loving your country and the government. Friedman said the Chinese have a deep desire to be patriotic and to be on the government’s side. When the international community criticized China for its treatment of Tibetans last year, Friedman said many Chinese were angered and stood up for the Communist Party. He said many people feel the rise of China globally and economically is more important than democracy.

“There is a kind of nationalism which does not want to face up to the realities of China as just another state in a nasty world of nation states,” Friedman said.

There’s no telling how China’s political system will evolve, Friedman said, and it could turn into a global power with soft authoritarian rule like Singapore. He said the historical significance and memory of June 4, 1989 will be shaped by what direction China takes in the future. Wang said what happened within the Chinese government is one of the biggest missing pieces in the Tiananmen Square story. Although the recent publication of former Chinese general secretary Zhao Ziyang’s memoirs highlight some of the government’s internal struggles at that time, Wang said the government’s full story is still unknown.

The historical significance of Tiananmen Square has been lost on many of today’s youth in China. Abraham Wang, who was born in China and spent his childhood years there, said aside from elementary school rumors he didn’t learn about what happened at Tiananmen Square until he was in high school overseas. Wang, 25, said his generation has no collective memory of the incident and some of his elementary school friends either don’t care about it or believe “it’s some kind of conspiracy.” Because the government denies the massacre happened and public discussion about it isn’t allowed, he said he doesn’t blame his friends for feeling this way. Wang said he agrees that an economic crisis could change the way Chinese citizens view the government and political change.

Sotomayor Soundoff

By Shawn Healy

Six days after President Barack Obama nominated Sonia Sotomayor to fill Justice Souter's soon-to-be-vacated seat, the political world continues to echo with reverberations from the former law professor's first chance to mold the Court in his self-described "empathetic" fashion. Few question the legal credentials of a woman with 17 years on the federal district and appellate benches, not to mention her Ivy League educational background. Instead, the controversy centers on a couple of comments she made nearly a decade ago, a lineage of cases overturned by the High Court, and her pre-judicial life as a civil rights activist.

In a YouTube video filmed during an appearance at Duke University Law School, Sotomayor said, "All of the legal defense funds out there, they're looking for people with court of appeals experience" because "the court of appeals is where policy is made." The accuracy of her statement aside, it can be construed as code words for jurisprudence conservatives abhor: judicial activism.

Her second and more inflammatory remarks arose during a 2001 speech at the University of California-Berkeley. Sotomayor's racially-tinged remarks included the following: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." This confronts the standard assumption that justice is colorblind, but President Obama suggested she misspoke, and his press secretary said this quote was taken out of context. Conservative firebrands Rush Limbaugh and Newt Gingrich respectively called her a "racist" and accused her of "new racism."

The latter remarks are emboldened by Sotomayor's role in a case presently before the Supreme Court, Ricci v. DeStefano. She was part of a 3-0 decision by the Second District Court of Appeals that denied a New Haven fireman's claim that he was subjected to reverse discrimination. Given the current complexion of the Court, one would expect the 5-4 conservative majority to reverse.

According to Fox News, "Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor's reasoning."

This fiery rhetoric and track record considered, Sotomayor is all but a shoe in to become the first Latina on the Supreme Court (there is some controversy over whether she is the first Hispanic). The popular president's party, the Democrats, control 57 of the seats in the Senate (charged with "advice and consent" in the confirmation process), and two independents (Sanders and Lieberman) caucus with them. While this is one vote shy of a filibuster-proof majority, Republicans appear more likely to bloody Sotomayor and vote in opposition than to stymie the process altogether.

Moreover, the moderate-to-liberal Sotomayor would replace a justice with a similar ideological disposition in Souter, meaning the fragile conservative majority will remain. Expect more bruising battles should swing vote Justice Kennedy or conservative stallion Justice Scalia step down during the remaining years of the Obama presidency.

Additional analysis of the Sotomayor nomination will follow here in the ensuing weeks and months, but an under-the-radar detail has received scant press notice to date. She is Roman Catholic by denomination, and her confirmation would bolster the Court's Catholic majority to six. Justice Stevens would stand as the lone Protestant on a bench they long dominated, while Justices Breyer and Ginsburg are Jewish (also rare, Justice Brandeis aside).

Religious denomination need not dictate decisions, but it is interesting to note that the five current Catholics comprise the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito). Bellwether issues like abortion, gay marriage and the death penalty will test this coalition, especially by adding the divergent Sotomayor to the mix.