Independence Day commemorates the legal separation of the original thirteen colonies from Great Britain. The actual separation occurred on July 2, 1776, when the Second Continental Congress voted to approve The Resolution for Independency (aka the “Lee Resolution”). That Resolution, approved about a year after the start of the American Revolutionary War, declared the independence of the United States from the oppressive rule and tyranny of Great Britain.
After the vote for independence on July 2, Congress spent the next two days working on the Declaration of Independence, which Thomas Jefferson had drafted the previous month. The Declaration explained the reasons for separating from Britain. It states that when a government does not protect the rights of citizens, the people have the right and duty to form a new government. The Declaration explained how King George III had tried to take away the rights of the American colonists, including the right to a fair judicial system, right to trial by jury, and right to free trade and self-government. It shows that the colonies therefore had no choice but to separate from Britain in order to protect the colonists’ rights to life, liberty, and the pursuit of happiness.
After debate and revisions, Congress approved the final wording of the Declaration of Independence on July 4, 1776. A fancy handwritten copy of the final document was prepared for signing. That copy was signed by most of the congressional delegates on August 2, 1776. The signed copy was published and widely distributed to the public. Because the published copy contained the date of approval—July 4, 1776—that date became the one associated with our independence from Britain. At first, the 4th of July was not widely celebrated, but Independence Day eventually become a national holiday in 1870.
The Supreme Court issued a decision today lifting parts of the injunction against Trump’s executive order seeking to ban foreign nationals of six countries from entering the United States for 90 days. The ruling effectively allows foreigners with ties or relationships in the U.S. to enter the country, but allows the government to prohibit entry of persons who have never been here, or who have no family, business or other ties with the U.S. Under the terms of the executive order, the travel ban applies to nationals of Libya, Iran, Somalia, Sudan, Syria, and Yemen. The unsigned opinion specifies that foreign nationals who wish to visit or live with family members should be allowed into the U.S., as should students admitted to a U.S. university.
Today’s decision allows the Court to partially enforce the travel ban for 90 days, during which time the Trump administration is supposed to review its vetting procedures for allowing foreign nationals to enter the country. The Court agreed to hear arguments regarding the constitutionality of the travel ban when it reconvenes in October but indicated that the case could be moot by then if the government completes its review of vetting procedures with the expected 90-day period.
The travel ban has been challenged by civil rights groups who note that it was motivated by unconstitutional discrimination against Muslims. The six countries specified in the executive order are all majority Muslim. The Washington Post has published a good summary of the history of the travel ban and the court challenges that led to today’s Supreme Court decision.
The news this week is dominated by discussion of whether President Trump is or is not being investigated for obstruction of justice. At issue is whether Trump asked FBI Director James Comey to drop the FBI’s investigation into former National Security Adviser Michael Flynn and then fired Comey when he failed to do so. The FBI was investigating Flynn in relation to his false statements about conversations he had with the Russian ambassador in December 2016. So what, exactly, is “obstruction of justice”?
Obstruction of justice is a criminal charge that, in general, can be laid whenever a person obstructs prosecutors or other officials in the course of investigating or prosecuting criminal activity. Its exact definition can vary under different state and federal laws, but the following are typical examples of grounds for obstruction of justice charges:
- Lying to officers in the course of an investigation
- Hiding a suspect from investigation or providing them with a false alibi
- Altering, destroying, or concealing physical evidence
- Tampering with a witness
- Influencing jurors
- Malfeasance by a judge, prosecutor, or elected official in the conduct of their office
The question of whether Trump obstructed justice is governed by the definitions contained in Chapter 73 of Title 18 of the U.S. Code, specifically sections 1505 and 1512. Section 1505 makes it a crime to “endeavor to influence, obstruct, or impede” “any pending proceeding… before any department or agency of the United States.” Section 1512(c)(2) penalizes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” It will be up to Special Counsel Robert Mueller to determine whether Trump fired Comey in order to impede the FBI investigation into Flynn’s ties to Russia. Even Trump’s request that Comey stop investigating Flynn arguably constitutes obstruction of justice under Section 1512(c)(2) as an improper attempt to influence or impede the FBI investigation.
A key aspect of an obstruction of justice case is whether the prosecutor can prove beyond a reasonable doubt that the person acted with an improper purpose. Many legal experts believe that Trump’s admissions about why he fired Comey are evidence of his improper purpose. As a sitting president, Trump cannot be indicted for the crime of obstruction of justice. But he could be impeached if the FBI findings are turned over to a congressional committee and the committee feels impeachment proceedings are justified.
The U.S. Supreme Court this week struck down part of the Immigration and Nationality Act that favored mothers over fathers in conferring U.S. citizenship to children born abroad to an unwed American parent. The opinion in Sessions v. Morales-Santana, written by Justice Ruth Bader Ginsburg, was groundbreaking and constitutes a great leap toward gender equality in the nation’s immigration law.
The case was brought by Ramon Morales-Santana, who was born in the Dominican Republic to an unwed Dominican mother and a U.S.-citizen father. Under the law at the time, a child born abroad to an unwed American father was automatically a U.S. citizen if the father previously lived in the U.S. for a continuous period of ten years, five of them after the age of 14. (In 1986, Congress amended the law so that unwed U.S.-citizen fathers need only to have lived in the United States for five years.) But the law had an exception under which the child of an unwed mother is born a U.S. citizen if the mother previously lived in the U.S. for even one year.
At the time Morales-Santana was born, his father was 20 days short of meeting the time required to qualify his son for automatic citizenship at birth. Morales-Santana’s parents eventually married, and he came to the U.S. with his parents as a permanent resident. In 2000, he was convicted of several felonies, and the government sought to deport him. In opposing deportation, Morales-Santana asserted that he was a U.S. citizen because his father had been one. He argued that it was unconstitutional for the law to treat male and female parents differently and that the one-year residency requirement applicable to mothers should be applied to his father, which would mean he was born a U.S. citizen.
On Monday, the Supreme Court agreed that the different treatment of mothers and fathers under the citizenship law was unconstitutional sex discrimination. The child of an unwed American mother cannot be granted automatic citizenship more easily than the child of an unwed American father. Justice Ginsberg observed that the more favorable treatment for mothers was based on the premise that an unmarried mother is a child’s “natural and sole guardian.” She noted that such “overbroad generalizations” perpetuate stereotypes assigning the role of “primary family caregiver” to the mother and minimizing the role of fathers.
However, the Court held that it was unable to grant the relief Morales-Santana requested and declined to extend the shorter-residency exception to fathers. Until Congress steps in and reforms the law, the longer residency period—currently, five years, with two of them after the age of 14—will apply to all parents. Unfortunately for Morales-Santana, the stricter residency requirements in place at the time of his birth must be applied to him, meaning that the Court’s holding does not confer him with citizenship. Still, his case is historic as the first time the Supreme Court has applied the concept of gender equality to U.S. laws on citizenship.
This week marks the 50th anniversary of the landmark Supreme Court decision in Loving v. Virginia. The Court’s opinion, issued June 12, 1967, struck down the anti-miscegenation laws remaining in 16 U.S. states. Anti-miscegenation laws prohibited interracial marriage and interracial sex. Such laws once existed throughout the country, but by 1967, they had been repealed in most states outside the old Confederacy.
The Loving case involved two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man. The couple was married in the District of Columbia in 1958, and returned thereafter to Virginia, where they were charged with violating the state’s anti-miscegenation statute. The statute made interracial marriage a felony, and further made it illegal for an interracial couple to leave Virginia for the purpose of marriage and then return to reside in the state, “cohabiting as man and wife.”
The Lovings were found guilty and sentenced to a year in jail. The trial judge offered to suspend the Lovings’ sentence if they would leave Virginia and not return for 25 years. After their convictions, the couple moved to the District of Columbia. In 1964, they filed an action in federal court seeking to set aside their sentence on the ground that Virginia’s anti-miscegenation statutes were unconstitutional.
In a unanimous decision, the Supreme Court held that Virginia’s anti-miscegenation law, and others like it, violated the Equal Protection Clause of the Fourteenth Amendment. The Court found that the law had no legitimate purpose “independent of invidious racial discrimination.” The Court also held that the Virginia law violated the Fourteenth Amendment’s Due Process Clause. Chief Justice Earl Warren wrote, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
The Loving decision struck down all the anti-miscegenation laws that remained in the country in 1967. Laws were struck down in every state of the Confederacy—South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina—as well as in Texas, Oklahoma, West Virginia, Delaware, and Missouri.
You can listen here to the actual Loving v. Virginia oral arguments held before the Supreme Court on April 10, 1967.
The theater chain Alamo Drafthouse is under fire for its all-female screenings of the blockbuster hit movie Wonder Woman. At those screenings, held in several cities the first week of the movie’s release, not only was the audience women-only, but also the theater staff. To be clear, only a few such screenings were held in each city. The vast majority of screenings were open to men. For example, in the chain’s Downtown Brooklyn location, there were over 70 screenings during the week and only three were women-only.
Complaints have been filed with the New York City Human Rights Commission and the Equal Employment and Fair Housing Office in Austin, Texas. The complaints allege that the women-only screenings discriminated against male customers and employees. The screenings may technically violate some municipal anti-discrimination ordinances. For example, Austin’s ordinance prohibits the exclusion of anyone from a movie theater based on their sex or gender identification. However, the ordinance does not specify a punishment for violations. It merely says the city’s staff may attempt to resolve such matters through “informal methods” or refer cases to the city attorney for prosecution. The city of Austin is currently investigating the complaints on file.
One complainant, Stephen Clark, is a professor at Albany Law School. In an interview with The Washington Post, he compared the situation to a gay bar that might want to ban women from entering but is prevented from doing so by anti-discrimination laws. The flaw in Clark’s analogy is that Alamo Drafthouse does not have a policy banning men from their theaters. Men were free to attend all but a few of the numerous screenings of Wonder Woman held during the week. Alamo Drafthouse commented, “This has zip to do with equality. This is a celebration of a character that’s meant a great deal to many women since 1940.”
It’s true that men’s rights activists in some states have won settlements against nightclubs that host “Ladies’ Night” events. But they’ve also lost plenty such cases, too. Some legal observers think it’s unlikely a judge would take the complaints against Alamo seriously.
The complaints of employment discrimination seem to have little merit. Under Title VII of the Civil Rights Act of 1964, a male employee would have a case against the theater only if he could show a “material action” such as losing his job or suffering a loss of pay. Stacy Hawkins, a law professor at Rutgers University, explained to the Post, “As long as male employees are assigned to other screenings in the theater, they aren’t losing their jobs, hours or pay.”
Last week, comedian Kathy Griffin sparked outrage when she posed for a photo with a fake, bloody head resembling President Trump. Griffin later apologized and stated that the image “crossed the line.” But many on social media are arguing that an apology is not enough and that the photo amounts to a hate crime, treason, or other criminal conduct. If that were true, then the government must not only punish Griffin (by imposing a fine or prison time) but also prevent others from engaging in similar conduct. The legal question at issue is whether the photo is protected as free speech under the First Amendment to the U.S. Constitution or if it crosses the legal line into a punishable offense.
The Supreme Court has held that the First Amendment protects not only written and spoken words but also symbolic speech and expressive conduct, such as burning the flag to protest actions of the U.S. government. However, freedom of speech has limitations. For example, speech is not protected if it’s legally obscene, incites violence, or otherwise falls into a category of criminal conduct.
The photo plainly does not fall into the category of hate speech. There is no one definition of “hate speech,” but the term refers generally to speech that offends or threatens an individual or group of people based on their race, color, religion, national origin, sexual orientation, disability, or other such trait. No such specific traits of President Trump are identified in the photo. Even if the photo did amount to hate speech, that alone would not remove the protection of the First Amendment. There is no “hate speech” exception to the Constitution’s guarantee of free speech.
Griffin’s photo might be considered criminal if it were accompanied by a genuine threat to harm the president or if it intentionally incited someone else to do so. Federal law makes it a felony to threaten to harm the president. However, Griffin’s photo does not directly threaten the president, nor does it urge others to harm him. According to Stanford University law professor Nathaniel Persily, First Amendment protection would be lost only if the photo contained words specifically encouraging some type of threatening action. Without such words, the photo most likely falls into the category of “crude political hyperbole,” and the Supreme Court long ago held that such speech is protected by the First Amendment.