Ostensibly, Secure Communities is targeted at deporting undocumented immigrants who have committed crimes and pose a danger to the community. But the reality is very different. In many cases, undocumented people who are stopped by police for minor traffic violations, or who are never charged with any crime, find themselves handed over to ICE. Racial profiling is rife; some are targeted by police as “suspicious” for no reason other than their race or ethnicity, and, when they cannot produce identification, are taken into custody. Even those who are victims of crimes may find themselves turned over to ICE when they report the crime to the police. This report by the American Immigration Lawyers’ Association describes some particularly egregious instances of police abuse:

In June 2011, a car was pulled over in Pennsylvania for violating the regulation on tinted windows. The four passengers in the car were also asked for identification. When they could not produce any, the state police called ICE from the roadside and then brought the men to a local jail where they were held until ICE took them into custody. None of the men were ever charged with an offense.

In April 2011, a man was a passenger in a car that was pulled over in Florida for no apparent reason. The driver of the car had a license, so he was allowed to leave. He was never given a ticket. However, since the passenger had no proof of status, the officer held him at the roadside until ICE arrived to take him into custody. He was held in immigration detention for about three months, until he accepted voluntary departure.

In May 2009, a man was driving with his wife and young son, both U.S. citizens, when the car was pulled over in Maryland. The police officer claimed that the man was not wearing a seatbelt; the man states that he had been wearing a seatbelt. The officer arrested him but the charge was not pursued. Instead, the man was taken into ICE custody and eventually removed. His wife is having trouble making ends meet because her husband is no longer in the country to help support the family.

In April 2011, a young woman was sitting in a parked car outside a convenience store in North Carolina when a police officer approached her. The officer asked her for her name. Initially, she gave the officer her nickname but when she realized that the officer was serious about questioning her, she handed over her bag and passport. The police officer removed her from the car and handcuffed her, accusing her of lying by giving a nickname. The officer then said, “You fucking Mexicans are all alike.” The woman and the officer got into a heated argument, and she was charged with identity theft, making a false report to a police officer, and resisting arrest. After posting bail, she was transferred into ICE custody. The young woman has lived in the U.S. since she was two years old, graduated from high school, and volunteers in her community.

In December 2009, a woman in Maryland called the police for protection from her partner. While the police were in her home, they saw her neighbor give her $10 in quarters and, separately, that she had several $2 phone cards on a table. The officers never asked her about the phone cards, but they later filed charges alleging that she was illegally selling phone cards. She never received the notice about the charges, and a bench warrant was issued. When she found out about the warrant, she went to the police station. She was served with an arrest warrant, arrested, and her fingerprints were taken. Her fingerprints were shared with ICE through Secure Communities, and she was taken into ICE custody, held for several days, and then released on an ankle monitor. She has a two-year-old U.S. citizen child.

As the report observes, “[a]ny contact with the police, no matter how innocent or trivial, can result in immigration enforcement and removal.” This breaks down trust between police and the communities they serve, and makes victims more reluctant to report crimes, lest they themselves be arrested and handed over to ICE for deportation. Families are torn apart; undocumented people are separated from their spouses and children, and, in some cases, are shipped hundreds or thousands of miles to ICE detention facilities in other states. As I’ve noted in previous posts, those in immigration removal proceedings have no automatic right to counsel, and, in 2007, 84 percent of those in immigration detention had no lawyers to represent them.

Here in Massachusetts, Governor Deval Patrick made headlines last year when he announced that the state government would not participate in Secure Communities. However, this year, federal officials have coerced the state into participating in the program, and Governor Patrick has acquiesced in their plans to implement Secure Communities across Massachusetts, beginning tomorrow, May 15.

The Obama administration has a poor record on immigrants’ rights; under Obama, the number of deportations has soared to nearly 400,000 a year, and ICE’s enforcement efforts have been ramped up. Now it is foisting Secure Communities on states and localities which do not want and do not need this program. The result will be more needless suffering, and less safety for everyone.

Victims of domestic violence who are undocumented immigrants often face exceptional difficulties in leaving the abusive relationship. In many cases, the abuser threatens to report the victim to immigration authorities, using the threat of deportation as a means of control. According to researchers Lesleye Orloffe and Janice Kaguyutan, “A survey among Latina immigrants in the Washington, D.C. area found that 21.7% of the battered immigrant women survey participants listed fear of being reported to immigration as their primary reason for remaining in an abusive relationship… Abusers use constant threats to deport spouses and children as very powerful tools to prevent battered immigrant women from seeking help and to keep them in violent relationships.” Victims who are undocumented are often afraid to report the abuse to police, because of the danger that they themselves will be arrested and turned over to Immigration and Customs Enforcement (ICE); this danger has increased with the advent of the “Secure Communities” and 287(g) programs, in which local police cooperate with federal authorities in enforcing immigration laws.

The Violence Against Women Act (VAWA) attempts to address this problem in several ways. First, since 1994, undocumented immigrants who have suffered domestic violence at the hands of an immediate family member who is a United States citizen or permanent resident can, if they meet certain requirements apply for lawful permanent resident status (a “green card”) without their abusers’ cooperation. This can be done affirmatively through filing a “VAWA self-petition” with US Citizenship and Immigration Services (USCIS). To file a self-petition, a victim must prove that she has suffered “battery or extreme cruelty” at the hands of a spouse, intended spouse, or parent who is a United States citizen or permanent resident, or an adult daughter or son who is a United States citizen; that she has previously resided with her abuser in the United States; and that she is of good moral character. Similarly, a victim who is already in Immigration Court and facing deportation can apply for “cancellation of removal”, if she can show that she has been abused by her United States citizen or permanent resident spouse, intended spouse, or parent; that she has been continuously present in the United States for at least three years; that she is of good moral character; and that she, or her child or parent, would suffer “extreme hardship” if removed from the United States. Making successful applications for VAWA immigration benefits is no easy task; it’s often very difficult for victims to obtain the documentary evidence they need to prove their case, especially for those who have few resources, limited English proficiency, and no access to legal advice.

Second, since 2000, undocumented immigrants who have been victims of certain crimes in the United States, including rape and domestic violence, can apply for a temporary visa called a “U visa”. A U visa gives the victim work authorization, the right to stay in the United States, and the option to apply for lawful permanent resident status after three years.

It’s already tough to apply for a U visa. An applicant for a U visa has to prove to USCIS that she has suffered “substantial physical or mental abuse” as a result of being a victim of criminal activity. She also has to prove, among other things, that she “has been helpful, is being helpful, or is likely to be helpful” to federal or state authorities in investigating and prosecuting the crime. In practice, this means that law enforcement agencies have total discretion as to whether to certify a victim as having been “helpful”. Researcher Elizabeth McCormick found that “some law enforcement agencies have already refused, as a result of misunderstanding, misinformation, or even antipathy toward immigrants to certify U visa petitions in some cases.” Without the certification, victims can’t get U visas and may face deportation.

Now, however, it seems that House Republicans want to make life even tougher for victims. While the VAWA reauthorization bill recently passed the Senate, House Republicans have introduced their own rival reauthorization bill, HR 4970. This bill would toughen up the requirements for obtaining immigration relief under VAWA. For those filing VAWA self-petitions, for instance, section 801 of the bill raises the standard of proof to “clear and convincing evidence” – making it harder for victims to prove that the abuse occurred – and forces victims to attend an in-person interview with an investigative officer. Instead of being adjudicated at the Vermont Service Center, where adjudicators have special training in domestic violence issues, self-petitions will be adjudicated at local USCIS district offices. If the investigator finds that the petitioner made any “material misrepresentation”, he or she is subject to immediate “expedited removal” with no further hearing, and is permanently barred from any immigration benefits. And, most worryingly of all, section 801 of the bill also requires adjudicators to consider evidence submitted by the abuser. As the Rural Women’s Health Project points out, this requirement “endangers victims by allowing abusers to perpetuate further abuse through the immigration process, creates duplicative and unnecessary bureaucracy, and increases barriers to safety for vulnerable victims.”

Likewise, HR 4970 would roll back the U visa program. Under section 802 of the bill, victims won’t be eligible for a U visa unless the relevant crime is “actively” under investigation or being prosecuted – so where law enforcement authorities have decided to drop the charges, victims will have no protection. The bill would impose an arbitrary time limit on applications for U visas, requiring that the victim report the crime within 60 days of its occurrence – excluding victims from protection if, for instance, they delay reporting the crime because they are afraid of reprisals from their abusers. And the bill would also deprive U visa recipients of the opportunity to become lawful permanent residents.

Let’s not let House Republicans make life harder for immigrant victims of domestic violence. Please write to your Representative today.

Since the release of the documentary “Lost in Detention”, there has been some increased political attention to the horrors of conditions inside many of ICE’s detention centers. The ICE detention centers are not part of the criminal justice system, and the people held there are not criminals. Rather, most are people who have been arrested for civil immigration violations, such as entering the country without papers or overstaying a visa; they are being held pending their hearings in Immigration Court, in which an immigration judge will decide whether they should be deported from the United States or allowed to stay. For nothing more than being present in the country without papers, they find themselves locked away in detention camps, surrounded by barbed wire and armed guards, separated by force from their families; many have children who are United States citizens, and are forced to leave their children behind. Since Immigration Court proceedings are civil and not criminal, detainees do not have full rights of due process, and have no automatic right to government-appointed counsel. The majority of detainees – 84 percent in 2007 – have no lawyers, and must make their own case in Immigration Court against deportation. Some are locked up in detention for months or years before they even get a court hearing. I wrote last week about the appalling conditions in ICE detention, including hundreds of reported instances of sexual assault, humiliation and racist abuse perpetrated by guards against detainees. More information can be found in the Washington Post’s exposé of conditions at the infamous Willacy Detention Center in Texas.

Despite being made aware of these horrors, it seems that the Republicans are intent on making things worse, rather than better. The Obama administration recently announced improved standards of care for those in ICE custody, aiming in particular to improve medical care and to put an end to physical and sexual abuse of detainees. The Republican chairman of the House Judiciary Committee, Lamar Smith, responded by convening a hearing which he sarcastically termed “Holiday on ICE”, expressing his sheer contempt for immigration detainees and his lack of concern with the appalling conditions in which they are presently held. Republican congressmen sneered at the evidence presented:

“It’s outrageous that immigration detention facilities have morphed into college campuses,” said Rep. Elton Gallegy (R-Calif.). “Under this administration, detention looks more like recess,” [Lamar] Smith proclaimed.

Rep. Steve King (R-Iowa) attempted to turn the immigrant rights advocates’ figures against them, arguing that, comparatively speaking, the number of detainees who have died while awaiting deportation is actually quite small: “110 deaths is not alarming to me,” he explained, suggesting that immigrants were actually safer in an ICE detention center than they were “in the broader society.”

None of this is new. Lamar Smith was one of the sponsors of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which instituted a number of illiberal “reforms” that made life worse for immigrants. So, too, Steve King has a long history of extreme racism: he has compared undocumented immigrants to “cattle”, has accused them of being criminals and disease-carriers, and has built a relationship with white supremacist hate groups. He even suggested that congressional supporters of comprehensive immigration reform, labelled “amnesty” by the xenophobic right, should have a scarlet letter A pinned to them.

Then there is the continuing refusal of Republicans in Congress to sign on to reauthorization of the Violence Against Women Act (VAWA). First introduced in 1994 with bipartisan support, VAWA was renewed without controversy in 2000 and 2005. VAWA contains a number of measures aimed at combating domestic violence, but some of its most important consequences are in the immigration field. Through the “self-petition” and “cancellation of removal” procedures, some undocumented immigrants who are victims of domestic abuse at the hands of their United States citizen or lawful permanent resident spouses or parents can obtain lawful permanent resident status, known as a “green card”. And through the “U visa” program, undocumented immigrants who are victims of serious crimes can obtain temporary legal immigration status, so long as they cooperate with law enforcement in the investigation and prosecution of the crime. The reauthorization bill would, reportedly, provide more flexibility in granting U visas to undocumented people who are victims of domestic abuse – a proposal which has been slammed by Senate Republicans. It seems the Republicans hate and fear immigrants so much that they’re even willing to throw victims of domestic violence under the bus.

Despite my frequent criticism of President Obama and the Democrats, it seems there is no choice but to support him in November. At least his administration has made limited, piecemeal efforts to reduce some of the worst abuses of immigration enforcement; and at least he remains committed in theory to immigration reform measures such as the DREAM Act, which would provide a path to legal status for undocumented immigrants who came to this country as children and have graduated from schools in the United States. Electing a Republican would take away even these limited and remote possibilities for a fairer and more humane system.

See also

The case for open borders

The cruelty and violence of immigration enforcement

These laws are cruel, and it is time to speak out against them. I refuse to dignify those who advocate such laws with the label “pro-life”. It is precisely because I value human life that I am pro-choice: in the real world, laws which restrict abortion lead only to more death, more pain and more suffering. I believe that women should have the right to choose – and that this right should not be cut off arbitrarily at the twentieth week.

Let’s stop and consider the kinds of situations in which a woman might have a “late-term abortion”. Such abortions are extremely rare, with eighty-eight percent of all abortions in the United States occurring within the first twelve weeks of pregnancy. In almost all cases where an abortion is performed late in the pregnancy, it is either because the pregnancy has developed complications that threaten the woman’s life, or because the foetus has severe abnormalities that will prevent it surviving outside the womb. These abortions are urgently medically necessary. And when they are banned, terrible consequences ensue.

Danielle Deaver lived in Nebraska, where abortion after the twentieth week is illegal. She was forced to endure the psychological torment of giving birth to a newborn which she knew could not survive outside the womb.

Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come.

And that’s what happened. The one-pound, ten-ounce girl, Elizabeth, was born December 8th. Deaver and husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later…

Deaver, 34, and her husband planned the pregnancy and wanted a second child, she said.

Their dreams ended tragically when they learned, shortly before the premature birth, that the pregnancy could not go to term and that the fetus had virtually no chance to survive. She was in her 22nd week of pregnancy when her water broke. Abortion was barred at 20 weeks by the Nebraska law.

Living in another state, Dana Weinstein was able to choose.

In the summer of 2009, with a 2 1/2-year-old son and a daughter on the way, the Weinsteins were looking forward to completing their family. Then tragedy struck. After a sonogram 29 weeks into her pregnancy, Weinstein learned her daughter’s brain hadn’t formed properly and that the baby would face severe health and mental problems, if it survived at all. Several weeks later, she made the painful decision to end the pregnancy before “Baby W” was born. Now Weinstein fears that if Republican legislators around the country succeed in banning abortions after 20 weeks, many women in similar situations will no longer have the option that she did…

On June 26, 2009, she went in for a routine sonogram to check the progress of “Baby W.”

The sonogram detected abnormalities. The technician noted that the ventricles in the baby’s brain were enlarged and that the fetus seemed to be having difficulty swallowing. An MRI several weeks later confirmed that the baby suffered from multiple malformations of the brain. The connections between the right and left brain had not formed, a condition called agenesis of the corpus callosum. The baby also had polymicrogyria, a severe brain condition where the ridges don’t form properly, which can cause intellectual and physical disabilities, as well as seizures that are “difficult or impossible to control with medication,” according to the National Institutes of Health…

It was a rare diagnosis, and it’s unclear what caused it, [Dr. Rhonda] Schonberg says. It is also a condition that was not clear in Weinstein’s 20-week checkup; most brain development occurs in the third trimester, so it would have been difficult to foresee this earlier in the pregnancy.

Weinstein was faced with the prospect of giving birth to a baby that was expected to suffer from nearly constant seizures, could have required feeding tubes to stay alive, and could have been in a vegetative state, if it survived at all. She decided to end the pregnancy rather than continuing for another two months and prolonging the suffering. It was a very personal decision, she says, one made between her, her family, and her doctors. “We wanted her and loved her,” Weinstein says. “In some ways I feel a little bit lucky, in that she was so sick that the decision was almost made for us. I don’t wrestle with guilt.”

This is why it is important to protect women’s right to choose – not just in the first twenty weeks, but throughout the entire pregnancy.

I wrote yesterday about the impact of the “Secure Communities” program, in which state and local police share information with Immigration and Customs Enforcement (ICE), including the fingerprints of people who are arrested, in order to facilitate the detention of undocumented immigrants. This program, first piloted when George W. Bush was in office, has been expanded to more than 1,000 local jurisdictions under the Obama administration. It is common today for ICE to issue detainers for non-citizens who are arrested by local police: the detainer requests the local law enforcement agency to hold the detainee in custody until ICE can come to collect them. In many cases, the people thus detained have committed trivial traffic violations – including driving without a license, something which is often unavoidable, since most states will not issue driver’s licenses to undocumented immigrants – or no crime at all. Racial profiling is commonplace; in some cases, people have been stopped by police merely because of their ethnicity, and turned over to ICE custody when they are unable to produce identity documents. In families of mixed status – for instance, where the children are United States citizens and one or both parents are undocumented – it is common for families to be torn apart, and children forcibly separated from their parents. Undocumented immigrants who entered this country as young children, who have lived here for their entire adult lives and who have never known any other home, can face arrest, detention and the prospect of deportation after a single contact with police. Sometimes, even victims of domestic violence who call the police for protection from their abusers can find themselves arrested and handed over to the immigration authorities, awaiting deportation.

Once taken into ICE custody, detainees often end up transported hundreds or thousands of miles from their homes and imprisoned in one of the many immigration detention centers, most of them run by private contractors. Once in detention, they face appalling and dehumanizing conditions. Among other horrors, there have been hundreds of allegations of sexual assaults, rape, and racist abuse of detainees in immigration detention in the last few years. The filmmakers visited the infamous privately-run Willacy Detention Center in Texas, and interviewed former detainees and the facility’s former mental health coordinator. Many former detainees reported incidents of serious physical abuse. One detainee, a mother who had been forcibly separated from her young children when she was pulled over in a traffic stop by local cops and turned over to ICE, was in tears as she described the repeated sexual assaults she suffered at the hands of a male guard at the detention facility. When she complained, she was told by another guard that ICE would retaliate against her if she reported the assault. Another former detainee remembered being called “n*****r” by one of the guards, and a third reported having witnessed a detainee being beaten by several guards for “talking back”.

When deprived of their liberty, non-citizens detained by ICE are also denied the basic right to due process of law. As I explained in my last post, proceedings in Immigration Court are civil rather than criminal proceedings, and immigration detention is not regarded as a criminal sanction: because of this, people detained for immigration violations do not have the same procedural rights as those facing criminal charges. There is no automatic right to legal counsel, and the majority of detainees – 84 percent in 2007 – have no legal representation, and must defend themselves in Immigration Court without the aid of a lawyer.

It is tempting to put the blame primarily on Republicans in Congress, who have repeatedly blocked attempts at comprehensive reform of the immigration laws. But I am angry with the Obama administration, too. During Obama’s presidency, the number of deportations has soared to 400,000 per year, as a result of the administration’s deliberate policy of ramping up immigration enforcement, in which ICE has been given express annual targets for deportations. Contrary to the administration’s claims, the majority of those in immigration removal proceedings do not have criminal records. The Department of Homeland Security has pressured more states and localities to participate in the “Secure Communities” program, and more people who come into contact with local police officers face the prospect of being turned over to ICE and placed in immigration detention. Obama cannot be blamed for the failure to enact comprehensive immigration reform – it is up to Congress to do that – but he can be blamed for deliberately ramping up enforcement of the existing unjust and racist immigration laws. On his watch, more families are being torn apart, more people jailed in privately-run detention centers, more women detainees abused and sexually assaulted, more children left to grow up without parents. This needs to end.

Less than seven decades ago, Franklin Roosevelt ordered Japanese-Americans to be rounded up and placed in internment camps, treating them like criminals for no reason other than the color of their skin. Today, we look back on this as an atrocity; and some day, I expect that our descendants will feel the same way about the immigration detention system in which men, women and children are herded into camps, surrounded by barbed wire and armed guards, abused, and treated like criminals, for no reason other than being of the wrong nationality and having crossed an arbitrary border without papers. It’s time to stand up and demand comprehensive immigration reform – and to hold both political parties to account for the unjust and racist treatment of immigrants.

Responsibility for immigration enforcement is split between two departments, Homeland Security and Justice, and a veritable alphabet-soup of federal agencies. Two agencies, both within the Department of Homeland Security, are tasked with enforcing immigration laws and arresting those who are unlawfully present: Customs and Border Protection (CBP), which is tasked with policing the borders, and Immigration and Customs Enforcement (ICE), which enforces immigration laws within the country. Those non-citizens who are arrested for immigration violations may find themselves detained for months or years in ICE or CBP custody until they receive a hearing in Immigration Court. Often, detainees are transported without warning to detention centers hundreds or thousands of miles from their homes, and families of detained immigrants often face an uphill struggle in trying to find their loved ones. Conditions in immigration detention are sometimes degrading and dehumanizing. Here in Boston, Pedro Tavarez, an immigrant fighting deportation to the Dominican Republic, died in a Suffolk County jail from heart failure caused by an infection, after receiving grossly negligent health care.

Since immigration proceedings are considered to be civil rather than criminal, non-citizens in immigration detention do not have the same constitutional rights as people detained in the ordinary criminal justice system. In many cases, they do not even get the basic right to consult a lawyer. Unlike criminal defendants, immigrants facing deportation have no automatic right to government-appointed counsel, and must find their own lawyers at their own expense, or face the ordeal of defending themselves alone in Immigration Court. In 2007, 60 percent of those in Immigration Court had no legal representation, and this number rises to 84 percent when only counting those held in immigration detention. (Source: American Bar Association, 2010, at p. 199) The Immigration Courts are also seriously understaffed, with immigration judges facing huge workloads and pressure to dispose of cases quickly. Under the Obama administration, the number of deportations has reached record levels, with 400,000 people every year being removed.

For those in immigration removal proceedings, the stakes are high. Deportation to another country means the loss of one’s home, community and livelihood. For those with partners and children in this country, deportation means forced separation from their loved ones. And for asylum-seekers, who are fleeing persecution in their home countries, the stakes are literally life and death: a miscarriage of justice can mean deportation to a country where they face murder, torture and other human rights abuses. Yet immigrants trying to make their case are accorded very little assistance. Defending oneself in court is a daunting prospect for anyone, and doubly so for those with limited English proficiency; and getting to grips with the bewildering complexity of American immigration law, with its jargon and constant revisions, is not easy even for lawyers and law students, much less for those who may have no familiarity with the legal system.

What leads to someone ending up in immigration detention in the first place? Since the federal government introduced the badly-misnamed “Secure Communities” program, state and local police forces are increasingly involved in the enforcement of immigration laws, “creating reactions of fear each time a siren is heard”. In many cases, undocumented immigrants who are stopped by police for minor traffic infractions, or who are never even charged with any crime, find themselves reported to ICE and detained. Some are stopped by police as “suspicious” for no reason other than their race, and, when they cannot produce identification, are turned over to the immigration authorities. Even those who are victims of crimes may find themselves turned over to ICE when they report the crime to the police. A report by the American Immigration Lawyers’ Association provides some particularly egregious examples of police abuse:

In June 2011, a car was pulled over in Pennsylvania for violating the regulation on tinted windows. The four passengers in the car were also asked for identification. When they could not produce any, the state police called ICE from the roadside and then brought the men to a local jail where they were held until ICE took them into custody. None of the men were ever charged with an offense.

In April 2011, a man was a passenger in a car that was pulled over in Florida for no apparent reason. The driver of the car had a license, so he was allowed to leave. He was never given a ticket. However, since the passenger had no proof of status, the officer held him at the roadside until ICE arrived to take him into custody. He was held in immigration detention for about three months, until he accepted voluntary departure.

In May 2009, a man was driving with his wife and young son, both U.S. citizens, when the car was pulled over in Maryland. The police officer claimed that the man was not wearing a seatbelt; the man states that he had been wearing a seatbelt. The officer arrested him but the charge was not pursued. Instead, the man was taken into ICE custody and eventually removed. His wife is having trouble making ends meet because her husband is no longer in the country to help support the family.

In April 2011, a young woman was sitting in a parked car outside a convenience store in North Carolina when a police officer approached her. The officer asked her for her name. Initially, she gave the officer her nickname but when she realized that the officer was serious about questioning her, she handed over her bag and passport. The police officer removed her from the car and handcuffed her, accusing her of lying by giving a nickname. The officer then said, “You fucking Mexicans are all alike.” The woman and the officer got into a heated argument, and she was charged with identity theft, making a false report to a police officer, and resisting arrest. After posting bail, she was transferred into ICE custody. The young woman has lived in the U.S. since she was two years old, graduated from high school, and volunteers in her community.

In December 2009, a woman in Maryland called the police for protection from her partner. While the police were in her home, they saw her neighbor give her $10 in quarters and, separately, that she had several $2 phone cards on a table. The officers never asked her about the phone cards, but they later filed charges alleging that she was illegally selling phone cards. She never received the notice about the charges, and a bench warrant was issued. When she found out about the warrant, she went to the police station. She was served with an arrest warrant, arrested, and her fingerprints were taken. Her fingerprints were shared with ICE through Secure Communities, and she was taken into ICE custody, held for several days, and then released on an ankle monitor. She has a two-year-old U.S. citizen child.

In some cases, the situation is further worsened by punitive anti-immigrant laws at the state level, like Arizona’s SB 1070 and Alabama’s HB 56, which criminalize undocumented immigrants, deprive them of access to public services, and direct state and local police to enforce immigration laws, legitimizing racial profiling and police abuse of racial minorities. I have recently been involved in the campaign against SB 2061, a similar law proposed here in Massachusetts.

Nor is it only undocumented immigrants who can find themselves facing deportation. Since the harsh Illegal Immigration Reform and Immigration Responsibility Act of 1996, even legal immigrants – including lawful permanent residents who have lived in this country for years, and who may have spouses and children in this country – can find themselves facing deportation if they are convicted of even a relatively minor crime. For instance, under 8 USC § 1227(a)(2)(B), conviction of almost any offence relating to a “controlled substance” results in deportation for a non-citizen, even possession of more than 30 grams of marijuana. In effect, non-citizens convicted of crimes are punished twice over: having completed their criminal sentences, they then find themselves taken into custody by ICE, imprisoned again and facing deportation. For crimes that would get the average middle-class American a slap on the wrist, non-citizens may face forcible separation from their families, and the loss of their lives and livelihoods in this country.

The immigration detention system in the United States is an atrocity. People are jailed, treated as criminals, and subjected to the dehumanizing label of “illegal alien” – for nothing other than crossing a border without papers or overstaying a visa, in order to seek work, to be with one’s family, or to flee violence and oppression. The system is also a form of institutionalized racism. Overwhelmingly, it is members of racial minorities who bear the brunt of immigration enforcement: they are the most likely to be arrested for minor infractions or for nothing at all, the most likely to be identified by police or ICE agents as likely “illegals”, and the most likely to find themselves in custody awaiting deportation. On another level, the very idea that immigration into the country ought to be limited, and that those present without papers ought to be removed by force, has its roots in a xenophobic fear of foreigners: looking back at the Chinese Exclusion Acts of 1882 and the racial quotas in the Immigration Act of 1924, America’s immigration laws have always been grounded deeply in racism. There is no comprehensible reason why the location of a person’s birth, the colour of their skin, or the colour of their passport should determine where they are allowed to live, work, raise a family, and exercise the rights of free human beings.

Open bigotry against transgender and transsexual people continues to be rife in our society. Violent hate crimes against trans people, including murder, continue to be frighteningly common. In many jurisdictions trans people do not even have explicit legal protection against discrimination. Here in Massachusetts, it was only last year that the legislature finally enacted the Transgender Equal Rights Act – and even now, it provides no protection against discrimination in public accommodations. In Britain, my home country, it was not until 2004 that trans people were guaranteed the right to change their legal gender, and it is only in the last decade that they have come to be explicitly included in equality legislation. In Canada, Bill C-279, which would extend legal protections against discrimination to trans people, is currently pending before the Canadian Parliament: please sign the petition. For anyone looking for resources to better understand trans people and the struggles they face, I recommend Natalie Reed’s excellent blog, from which I have learned a great deal. I particularly recommend reading this post.

Transgender rights should matter to all of us. As a humanist and as a Unitarian Universalist, I believe in the inherent worth and dignity of every human being. No one should ever face violence, persecution or discrimination because of their gender identity or expression. This is, I hope, something that we can all agree on, regardless of our political and religious perspectives.

Meanwhile, more sad news from Canada. The Canadian Parliament is considering a harsh anti-immigrant bill, C-31, which would, among other things, impose mandatory detention for many refugees in Canada, and take away refugees’ rights of appeal against a refusal of asylum. I’ve written before about the horrors of mass immigration detention in the United States and in Britain, and it seems that the conservative Harper Government in Canada is intent on emulating these abusive and racist policies. If you are Canadian, please write to your MP and speak out against the bill. It’s time that all of us, across the world, united to demand an end to the unjust and racist treatment of refugees and asylum-seekers.

As a non-theist who attends a Unitarian Universalist church, and whose own relationship to faith is complex and ever-shifting, I often feel a little out of place at atheist events. I have often expressed my discomfort with the organized atheist movement: in particular, with the insensitivity of certain white male atheist activists to issues of race and gender, and with the excessive focus of some atheists on mocking and denigrating religion at the expense of constructive dialogue. Predictably, I found myself cringing at some of those chosen to address the rally on Saturday. I was disappointed that Bill Maher, who has a long history of sexist remarks, was among those invited to speak. Thankfully, many of us missed Maher’s talk entirely, being otherwise occupied by queuing up at the understaffed refreshment stand. (I’d love to claim that this was an intentional act of protest, but in fact I was just hungry and wanted some pizza.)

And among those speakers whose talks I did hear, I found myself uncomfortable with some of the rhetoric. Elisabeth Cornwell, executive director of the Richard Dawkins Foundation, claimed repeatedly during her talk that women in America have been placed in an “invisible burqa” by the recent spate of Republican-led attacks on women’s reproductive freedom. While I entirely share her disgust at these misogynistic laws, and happily join her in speaking out against them, I find the metaphor of the “invisible burqa” uncomfortable in this context; it seems to me inappropriate to coopt the lives and experiences of Muslim women in order to make an unrelated rhetorical point about American politics. I’ve previously written about the tendency of some atheist activists to demonize and vilify Islam, and about my concern that, in the present climate of widespread hostility to Muslims in Western countries, such rhetoric serves only to reinforce the rising tide of anti-Muslim bigotry. The use of Muslim religious clothing as a metaphor for sexist oppression seems especially inappropriate in this particular context, since we are talking about misogynistic laws passed by Christian legislators in a country populated largely by Christians. Although no faith should be immune from criticism, I do think we need to be sensitive to the fact that Muslims in the Western world are a minority who are frequently the targets of extreme bigotry and discrimination, and that we have a responsibility to avoid adding to that through our rhetoric.

Similarly, American Atheists director Dave Silverman raised my hackles with his bombastic description of his own organization as “the Marines of atheism”, and his implicit denigration of those of us who prefer a less confrontational approach in our dealings with people of faith. I don’t think violent metaphors are helpful or constructive; and given that the tactics of the self-proclaimed “Marines of atheism” evidently involve insulting African-Americans with racially insensitive billboards, I am not inclined to put myself on their side.

I’m also not a fan of the kind of fortress mentality that Silverman and his ilk promote, in which he seeks to pit atheists against the religious in some kind of epic struggle, as though we were two opposing camps with irreconcilable interests. In reality, the world is more complicated than that: there are many forms of injustice and many axes of oppression, some of them orthogonal to religion; and, in many cases, progressive religious believers can be important allies in social justice movements. For instance, through my recent involvement in activism for immigrants’ rights and in the campaign against SB 2061 in Massachusetts, I’ve come across many progressive people of faith in organizations like the Boston New Sanctuary Movement who are campaigning and organizing for social justice. Conversely, not all atheists are on “my side”, in any meaningful sense; I have come across sexist atheists, racist atheists, authoritarian atheists, and others whom I would regard as opponents, not allies, in the struggle for social justice and equality for all.

That said, the Rally also featured some speakers of a much higher quality. Greta Christina’s speech, based on her new book “Why Are You Atheists So Angry?”, was a substantive and serious critique of organized religion: from the fraud of “faith healing”, to the recently-revealed epidemic of child abuse in the Roman Catholic Church, to the fact that gay couples continue to be denied equal marriage rights in most states, to the relationship between belief in reincarnation and the Indian caste system. Obviously, she is right that organized religion can be a force for considerable harm, and I entirely share her anger at all these injustices and abuses.

Of course, in response, it could easily be pointed out that these criticisms do not apply equally to all forms of organized religion; indeed, plenty of people of faith have spoken out and continue to speak out against injustice, inequality and abuse. But her critique of faith cuts deeper than that. At root, sceptics’ objection to religious faith is an epistemological one: faith allows people to believe things without evidence or critical reflection, it is argued, and thus removes certain ideas from the realm of rational debate. And if we do not demand evidence for the things we believe to be true, how can we possibly reliably distinguish truth from falsehood? Without evidence, how can we claim to know that our own beliefs are right and that others’ beliefs are wrong? This epistemological objection is a powerful one, and applies to religious faith in virtually all its forms, including those religious sects which are progressive, inclusive and concerned with social justice. As transgender atheist blogger Natalie Reed puts it, in her essay God Does Not Love Trans People:

[S]aying “God loves trans people” has absolutely no more underlying justification, evidence or substance than does “God hates fags”. Neither party has any evidence on which to base this, and both are just extrapolations based on assuming God’s will ought reflect their own. We cannot possibly know how God feels about anyone (entertaining briefly the possibility that He even exists). When you introduce “God loves trans people” into the dialogue, you have nothing backing you up with which to cause a transphobic religious believer to accept your message or reconsider their position, but you have just validated, supported and helped normalize his belief in God- a God that he probably thinks hates us very, very much.

This, I think, is a difficult criticism to overcome; and it is why I continue to find myself in a quandary about matters of faith. I find myself very sympathetic to progressive people of faith, who seek to build religious traditions that are inclusive of and welcoming to lesbian, gay, bisexual and transgender people, to racial minorities, to immigrants, and to the poor and marginalized. I think that organized religion can be beneficial as well as harmful, and I believe it is important to acknowledge the role that progressive religious organizations – Quakers, Unitarian Universalists and the Christian left, to name just a few – have played in movements for social justice and social change. But, at the same time, I also understand the compelling reasons why atheists tend to be critical even of liberal and progressive faiths, and of the very concept of “faith” itself, as facilitating belief in falsehoods. This often leaves me with divided and conflicting loyalties, and I find that I am never quite at home on either side of the debate.

As a decision of the Ninth Circuit Court of Appeals, the precedent in Perry v. Brown is strictly binding only within the geographical boundaries of that circuit, although it has persuasive authority for courts elsewhere in the country. It may now be appealed either to the Supreme Court of the United States, or to an en banc hearing of the Ninth Circuit. If it is heard and decided by the Supreme Court, it will become a binding precedent for the whole country.

The majority of the Court opted to decide the case on a very narrow ground. Although they could have done so, the Court did not hold that same-sex couples have a general constitutional right to marry; they specifically opted not to decide that question either way. Rather, the majority of the Court laid emphasis on the fact that Proposition 8 represented the selective deprivation of a pre-existing right, since same-sex couples had the right to marry in California before Proposition 8 was enacted, and the specific purpose of Proposition 8 was to deprive them of that right. The Court applied the principle, laid down in Romer v. Evans, that the Equal Protection Clause of the Fourteenth Amendment prevents minority groups from being targeted for the deprivation of a pre-existing right without a legitimate reason. The decision in Romer, authored by Justice Kennedy, concerned a state constitutional amendment in Colorado which specifically banned the state legislature or any political subdivision of the state from providing any legal protection against discrimination on the basis of sexual orientation. The Supreme Court found that amendment to be unconstitutional under the Equal Protection Clause, on the basis that it “singled out a class of citizens for disfavored legal status” without any legitimate reason.

On the facts of the Perry case, the majority, applying the standard laid down in Romer, found that there was no legitimate reason for depriving gay and lesbian couples of the right to marry. They particularly emphasized the fact that the only effect of Proposition 8 was to deny same-sex couples the right to use the term “marriage” to describe their relationships; it did not prevent them from entering into “registered domestic partnerships” under state law, adopting children, or exercising the other substantive legal rights of married couples. This did not, however, mean that its effects on the rights of same-sex couples were trivial. On the contrary, the Court explicitly recognized the cultural importance of the term “marriage”, and found that marriage is “the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.” In a particularly quotable line, the Court wryly observed that “a rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The Court concluded, on the specific facts of the case, that California did not have a legitimate reason for depriving same-sex couples of this right. They dismissed the arguments of defendants and amici curiae that Proposition 8 served the purpose of “furthering California’s interest in childrearing and responsible procreation”, pointing out that Proposition 8 made no difference at all to existing state law on the subjects of parenthood or adoption, or the ability of same-sex couples to raise children. As such, the Court held that it was unnecessary to decide the merit of the defendants’ claim that biological parents were best-suited to raising children, because Proposition 8 had no effect whatsoever on state laws regarding parenthood, and the issue was thus wholly irrelevant. The Court clarified that this did not imply “that Proposition 8 would have been constitutional if only it had gone further”, for example, by taking the equal rights of parenthood away from same-sex couples; rather, it is only in that circumstance that it would be “necessary or appropriate for us to consider the legitimacy of [the defendants'] primary rationale for the measure.” The claim that denying same-sex couples the right to call themselves “married” would somehow encourage the strength or stability of heterosexual marriages was also found by the Court to be “implausible”. Similarly, the Court also rejected the arguments of amici curiae that Proposition 8 was intended to advance the state’s interest in “protecting religious liberty”, or in “protecting children from being taught about same-sex marriage in schools”; whether or not these were legitimate objectives, Proposition 8 did nothing whatsoever to advance them, since it made no changes whatsoever to existing California law on religious freedom or on the school curriculum. The Court concluded, instead, that the only reason for the enactment of Proposition 8 was “disapproval” of “gays and lesbians as a class”, and held, following the precedent laid down in Romer, that it was unconstitutional under the Equal Protection Clause for the state to single out a minority group and deprive them of rights merely because of disapproval.

The ruling in Perry is an important decision, and a landmark in the history of LGBT rights in America, but it leaves a number of important questions unanswered. It does not necessarily establish that there is a general constitutional right to same-sex marriage; that question still remains open. Rather, it simply means that the state cannot single out a particular class of people and arbitrarily deprive them of a pre-existing right, unless it has a legitimate reason for doing so. This, presumably, means that it is unconstitutional for a state to outlaw same-sex marriage if same-sex couples in that state presently enjoy the right to marry; but it remains unclear whether states in which same-sex marriage has never been legal are now required to legalize it.

It remains to be seen what will happen if the Supreme Court chooses to hear the case. Anthony Kennedy, often regarded as the “swing vote” in controversial cases before the Court, authored the majority opinion in Romer, and it seems unlikely that he will change his mind. Arch-conservative Antonin Scalia, by contrast, dissented in Romer, in one of the most vitriolic and scathing judicial opinions I’ve ever read; he would thus almost certainly vote to reverse the Ninth Circuit’s decision. So, I suspect, would fellow conservative Clarence Thomas, who joined Scalia’s dissenting opinion in Romer. I’m not confident making any definite predictions about the rest of the Court. But I am pleased that recent times have seen several victories for marriage equality in America, both in the courts and in the legislatures, from the Ninth Circuit decision in Perry to the passage of same-sex marriage bills in New York and Washington State; the tireless efforts of a generation of activists are beginning to pay off.

Dear Senator DiDomenico,

I am writing to you to express my opposition to Senate Bill 2061, currently pending before the Massachusetts state senate. This Bill contains a number of provisions which will cause significant hardship for thousands of immigrant families in Massachusetts. Among other things, it contains a provision excluding families from public housing if any member of the family has an undocumented immigration status, even if other members of the family are citizens or legal residents. It also excludes anyone who is not a citizen or permanent resident from paying in-state tuition rates for higher education, even if they have lived in Massachusetts all their lives and have their permanent home here.

And, most worryingly, the Bill promotes state participation in the federal “Secure Communities” program, and requires police to check the immigration status of people held in police custody and to forward this information to ICE. This could have a devastating impact – particularly on immigrants who are victims of domestic violence or other serious crimes, and who are deterred from coming forward and reporting the crime to police because of the risk of being deported. This measure prevents law enforcement from effectively protecting the victims of crime, and makes our communities less, not more, secure.

Immigrants – documented or not – are human beings with human rights, and they make a huge contribution to American society and to America’s communities. The present unjust immigration laws deny millions of people the opportunity to regularize their immigration status – including people who arrived in this country as children and have lived here all their lives, and including people who arrived in this country fleeing extraordinary hardship and suffering in their countries of origin. The current immigration laws force millions of people to live in fear of ICE raids and detention, facing the prospect of being deported and forcibly separated from their families, and trap many in conditions of exploitation in the workplace with no means of protecting their rights. I would ask you to read a short piece about the devastating impact of immigration enforcement. This Bill, by excluding undocumented immigrants from access to state public services and forcing state law enforcement authorities to aid in federal enforcement efforts, will make the situation worse.

Please join with me in opposing SB 2061. And please join me in standing up for human rights and equality for all residents of Massachusetts, regardless of nationality or immigration status.

Yours sincerely,

David Neale