News & Commentary

It takes an incredible amount of courage to face one’s attacker in court – to look them in the eye and tell the truth as you have experienced it. According to one study, between five and twenty-five percent of rape cases are reported to the police, and only one in five of this small percentage actually reaches trial. It is hard enough for survivors to come forward. We should not erect additional barriers to prevent individuals from exercising their fundamental right to access our justice system. And yet that is exactly what the Michigan Supreme Court’s proposed rule of evidence would do. The Court is considering a rule that would authorize judges to control a witness’s appearance in the courtroom. While seemingly innocuous on its face, it is clear that it was proposed to specifically authorize judges to bar Muslim women who wear niqab, a veil that covers the lover part of the face to testify in court unless they remove their veil. The rule was proposed in reaction to a lawsuit brought on by a Muslim woman whose small claims lawsuit was dismissed because she refused to remove her veil. However, it is easy to imagine a situation where the individual could be a victim of a violent crime or a rape survivor. In this situation, a woman who would like to bring a criminal claim against her assailant would have to choose between justice and religious beliefs – a choice that no one should have to make. In essence, imposing this requirement could mean women who wear a niqab could be raped with impunity. This is unacceptable. Our constitution simply cannot tolerate conditioning one of our most protected rights upon the abandonment of the free exercise of religion. It is sometimes easy to distance ourselves from discrimination against individuals who exercise religious beliefs that are foreign from our own behavior. “My religion doesn’t require me to do X,” we say, “so what do I care if the government discriminates against people who do X.” We all suffer, however, when individuals lose their right of access to the courts. The goddess of justice may be blind, but we cannot turn a blind eye to this type of religious discrimination.

It’s no surprise that women tend to be hurt first and worst during economic downturns. The reasons may be multifaceted, but one thing is apparent – despite 45 years since the passage of the Equal Pay Act – women still earn only 78 cents for every dollar that men earn. The statistics are even worse for women of color. And as we commemorate Equal Pay Day, the point into the year that a woman must work to earn as much as a man earned in the past year, we must urge Congress to make long-lasting changes. For too long, women have not been able to bring home all of what they rightfully earn. But there is a legislative solution - the Paycheck Fairness Act – a bill that would finally close the loopholes and weak remedies that have made the Equal Pay Act less effective in combating wage discrimination. Passing this law is especially critical for the women of Michigan during this economic crisis. And because of the rising unemployment rates, families are relying more than ever on women’s income – making pay equity even more necessary, not only to families’ economic security, but also to the nation's economic recovery. You can make a difference by taking these easy steps:

The Supreme Court once famously said that students do not shed their constitutional rights at the schoolhouse gate. But that principle is all too often ignored in schools all over the country including here in Michigan. This morning, the Supreme Court heard oral argument in an ACLU case from Arizona in which Savana Redding, an eighth-grade honor student with no history of disciplinary problems, was strip searched by school administrators in a futile hunt for prescription-strength ibuprofen pills. After a search of Savana's backpack turned up nothing, school administrators -- despite a lack of any evidence that Savana might be hiding the pills on her body -- forced her to undress and expose her private parts to prove she had done nothing wrong. This was a thoroughly humiliating, degrading, and invasive experience for Savana. What's more, it was completely unnecessary. It defies reason to suspect that school officials were going to find ibuprofen pills in Savana's underwear or under her bra. But school officials have gone all the way to the Supreme Court to defend their actions, insisting they did nothing wrong. One might hope that Savana's experience is unusual. But at the ACLU of Michigan we have received several complaints in recent years about unjustifiable strip searches of students in Michigan schools. School officials in Whitmore Lake, Ecorse, and Roseville have subjected students to humiliating and unreasonable strip searches in blatant disregard of their constitutional rights. Could what happened to Savana Redding happen to your son or daughter? If your child attends public school in Michigan, now is a good time to call your principal, superintendent, or school board to learn about your school system's strip search policies and practices. Ask them under what circumstances a school official is allowed to strip search a student without permission from a parent or a judge. If you don't like the answer, organize a coalition of parents to demand that the school board adopt a reasonable and sane policy to protect students' privacy rights. The Supreme Court was right – students do not shed their constitutional rights at the schoolhouse gate. Let's make sure those rights are maintained and respected.

The Oakland County showdown that pits the First Baptist Church of Ferndale (FBC) and its partner, the South Oakland Shelter (SOS), against angry residents who do not want services for the homeless in their neighborhood, may have reached a long-awaited conclusion. After a harrowing, four hour meeting and public comment period on March 17, the Ferndale Board of Zoning Appeals (BZA) licked their wounds, called their lawyers and soul-searched for nearly three weeks before making a decision and on March 31, the BZA elected not to be caught on the “fool” side of an April 1st joke and voted 6 – 1 in favor of a resolution to allow FBC/SOS to continue with its plans to provide day services to homeless folks in Ferndale. The board is expected to finalize its decision this week. The opposed residents have promised that the fight is not over. While I admire their tenacity, I respectfully wonder how they think they are going to succeed in striking the next blow. They have already performed breath taking acrobatics in their zoning arguments. Who knows? The zoning may or may not be on their side. But the more important point is that the Religious Land Use Act of 2000 (RLUIPA) supersedes local ordinances and protects FBC’s religious expression of fulfilling its charitable mission and assisting the work of SOS, whether or not the church does so by entering into a contract with a secular entity. A common tactic in the war for hearts and minds is to characterize rulings that involve Federal Law as a David & Goliath battle. The fearless homeowners have pulled out their slingshots, ready to slay any giant who dares assert the charitable mission of a local church in their backyard. We all love the little guy – as Detroiters we’re the nation’s little guy. But these particular Ferndale residents have the ideas – and the characters – all mixed-up. Righteousness is better characterized by values than the size of its teeth. Just because one side is supposedly represented by Washington and the other by Mayberry, doesn’t universally make the latter the good guy. The Constitution may have lofty origins, but it was designed to ensure justice. Furthermore, it is utilized to intervene on behalf of the even smaller of two little guys. The truth of the matter is that FBC and SOS are also local interests. Their constituents in this case (homeless service users) are among the most powerless local interests that exist. The Constitution ensures that all these other little guys are protected, whether the attack comes from beyond or next door. As a little guy and a Ferndale homeowner, I’m happy to see this small city is continuing its tradition of diversity and inclusiveness and, that over 200 years later, parties on all sizes continue to value and protect religious expression, telling the story of “David & Goliath” and the “Good Samaritan.”

In the waning days of Women’s History Month, I’ve tried to sit down and take stock of some of the progress that we have made. It is of course important to recognize that we have made some important strides in areas such as reproductive health, violence against women, and employment discrimination. But we still have a long way to go. In January, President Obama signed the Lilly Ledbetter Fair Pay Act. The Act extends the time period in which a petitioner can challenge discriminatory compensation practices, and is an important step towards eradicating wage discrimination. Yet today, female Detroit police officers still lack something that is perhaps even more basic than equal pay: an equal opportunity to work. Under current Detroit Police Department policy, pregnant officers are immediately placed on unpaid leave as soon as their pregnancy is disclosed. Instead of being given the opportunity to continue working at one of the many administrative positions available at the DPD, these women lose their paycheck, and in many cases, their only source of insurance. As a result, what is under normal circumstances a time of celebration is often marred by economic struggles. The ACLU of Michigan has filed a complaint against the DPD on behalf of five female officers challenging this discriminatory practice. These women do not want special treatment or extra benefits – they simply want the opportunity to continue to do their job. One officer, Angelica Robinson, was already working at a desk when she was placed on unpaid leave. Others were denied the opportunity to transfer to administrative duty during their pregnancy, notwithstanding the fact that several injured male officers were granted such positions. As a result, Officer Sha-mar Woods was forced to apply for welfare and go on Medicaid to obtain health insurance for herself and her unborn child. Unfortunately, these stories are not unique. As soon as the complaint was made public, additional stories poured into our office. Just this Sunday, the Detroit Free Press reported that seven Detroit Police officers who allegedly falsified arrest reports have been re-assigned to administrative desk duties during internal and criminal investigations of their behavior. It may be that crime does not pay, but under current DPD policy, alleged crimes do afford more opportunity to work for wages than pregnancy. This highlights the extreme disparity in treatment that pregnant women in the DPD continue to face. In today’s economy, the DPD’s policies have created a situation where couples literally cannot afford to expand their family. Recognizing the victories that we have already achieved, this represents the next hurdle that we must overcome in our path towards true equality for women.

Happy Anniversary Birth Control! Not the anniversary of the invention of the “pill” or the “IUD”, but of an individual’s right to actually obtain and use contraceptives. It seems incredible, but that right was only fully granted in 1972, when the US Supreme Court in Eisenstadt v. Baird decided that it was unconstitutional to deny contraceptives to unmarried persons. It was only a few years before Griswold v. Connecticut, that the Supreme Court declared that forbidding the use of contraceptives violates the right to marital privacy, a decision that was determined to only apply to married persons. So, 37 years ago the US Supreme Court declared that woman should be fully in charge of their reproductive future. So why does it seem like we’ve been backsliding? Today in Michigan, pharmacists can choose to deny to fill a prescription for birth control based on their own personal moral convictions. And, the Michigan legislature continues their attempts to pass a law enshrining that practice as a right in statute. Michigan employers who offer an insurance plan which includes prescription coverage can choose to remove contraceptives from the prescription plan, a choice not available for any other category of covered drugs. Even though the EEOC has declared this practice a violation of Title VII and the Michigan Department of Civil Rights declared it sex discrimination under the Elliott-Larsen Civil Rights Act, the practice is not against the law in Michigan. But things look hopeful as this important anniversary rolls around. The Michigan House of Representatives is introducing a comprehensive package of legislation that will require a pharmacy fill a prescription as written, leaving it up to the pharmacy to make arrangements to honor an individual pharmacists religious convictions without affecting the customer. The legislation will require “contraceptive equity” – a requirement that contraceptives cannot be excluded from an employer’s otherwise comprehensive prescription coverage plan. Other bills in the package will require that hospital emergency rooms offer emergency contraception to rape survivors and that public school sex education courses must include medically accurate information. These common sense measures are long overdue. Encourage your elected officials in Michigan to help restore a woman’s right and ability to control her reproductive future by supporting this package of legislation.

Never in all my days as a devout observer of the holiday did I think I would spend St. Patrick’s Day inside a sweaty municipal hall listening to the finer points of Ferndale’s zoning laws.

It's not every day you find that the American Jewish Congress, the National Association of Evangelicals, the A.M.E. Baptist Church, Michigan law faculty, and the Thomas Jefferson Center for the Protection of Free Expression all agree with one another. But this broad coalition of religious groups, law professors, and free speech advocates have come together to support a fundamental American principle: a preacher should not be sent to prison for writing a newspaper editorial that uses Biblical language to criticize a judge.