In 2016 we celebrate the 50th anniversary of the ABA Section of Civil Rights and Social Justice. Admittedly it may pale in comparison with last year’s 800th anniversary of the signing of Magna Carta, a vital document in the development of the common law. In commemorating that historic event, we remember that essentially it offered protection from the King to a few of England’s richest men.
The Declaration of Independence declared that all men are created equal and “endowed by their Creator with certain unalienable Rights.” But the US Constitution, as adopted only 13 years later, clarified that equality did not really apply to all men. It specified that many were only three-fifths endowed. Women were not considered in this equation.
An effort to rectify the shortcomings of the Constitution resulted in the ratification of the 14th Amendment to the in 1868, which extended citizenship to all persons born or naturalized in the United States. It also denied the states the ability to abridge the privileges or immunities of citizens and prohibited states from depriving any person of life, liberty, or property without due process of law or denying to any person the equal protection of the laws.
Still insufficient, the 15th Amendment, ratified in 1870, declared that the right of US citizens to vote shall not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude. This extended the vote to African Americans and freed slaves. It did not extend the vote to women.
On January 4, 1912, the ABA Executive Committee rescinded the membership of four black lawyers stating that “the settled practice of the Association has been to elect only white men as members.”
Women in the United States received the right to vote with the ratification of the 19th Amendment to the US Constitution in 1920.
In 1943 the ABA Assembly resolved that “membership in the American Bar Association is not dependent upon race, creed or color.”
In 1943 Marguerite Rawalt, representing the National Association of Women Lawyers, became the first woman member of the ABA House of Delegates.
In 1950 the first black lawyer was admitted to the ABA under the 1943 policy.
In 1965, Martin Luther King Jr. said that “the arc of the moral universe is long but it bends toward justice.”
The ABA Section of Civil Rights and Social Justice was founded in 1966 and was originally named the Section of Individual Rights and Responsibilities. It was created from the vision of Jefferson B. Fordham, Bernard G. Segal, Jerome Shestack, and others in response to the insistence of President Kennedy, who in 1963 asked why the legal profession appeared absent from supporting the federal judges who were making decisions deconstructing the clearly unconstitutional segregation that provided the infrastructure for the Jim Crow South.
The Section received its name because some delegates, were staunchly opposed to an organization dedicated to civil liberties without regard to what they considered to be the “responsibilities” of citizenship. In other words, their view was clear, that rights for Negroes were not inalienable but a mere privilege that needed to be earned.
The ABA’s history was less than illustrious up to that point. Segregation had been the norm throughout most of its existence. This lead to parallel professional organizations distinguished in their own right, but lacking in wealth, depth of membership, and the ability to claim to be representative of the entire legal profession. The ABA, for that matter, did not significantly open up until the 1960s and did not get serious about addressing its own shortcomings with respect to racial minorities and women until the 1980s.
The creation of the Section of Individual Rights and Responsibilities helped to refocus the ABA. The Section, the civil rights movement, and the role of Association lawyers in other organizations like the Lawyers Committee for Civil Rights, the National Bar Association, the National Asian Pacific American Bar Association, the Hispanic Bar Association, the Native American Bar Association, among others, as well as the diversification of the ABA with the greater participation of women, people of color, and members of the Lesbian, Gay, Bisexual, Transgender (LGBT) community, forced the Association to re-evaluate its fundamental principles. In the 1980s the ABA adopted core goals that reflected its commitment to a more free and just society.
The goals have since been restructured, but the core principles have been retained including:
Goal III: Eliminate Bias and Enhance Diversity.
1. Promote full and equal participation in the association, our profession, and the justice system by all persons.
2. Eliminate bias in the legal profession and the justice system.
Goal IV: Advance the Rule of Law.
1. Increase public understanding of and respect for the rule of law, the legal process, and the role of the legal profession at home and throughout the world.
2. Hold governments accountable under law.
3. Work for just laws, including human rights, and a fair legal process.
4. Assure meaningful access to justice for all persons.
5. Preserve the independence of the legal profession and the judiciary.
The Association and the Section have come a long way since 1966.
In 1999 a history of the Section was published entitled: Advancing the Law: Protecting the Individual, Defending Human Dignity: Pursuing the Challenges into the 21st Century: A Brief History of the American Bar Association Section of Individual Rights and Responsibilities.
This history, summarized below, described the first decades of the Section:
The 1960s: Moving the ABA into the Civil Rights Era. The Section initially focused its attention on the urgent need for the country to give life to the words of the civil rights guarantees in the Constitution, the civil rights acts adopted during Reconstruction, and the new civil rights laws of the 1950s and 1960s. The first policy recommendation and report of the Section honored the 100th anniversary of the 14th Amendment and called on the Association to reaffirm the fundamental principle that lawyers as individuals, and members of an organized legal profession, have a responsibility to ensure the equal rights of all citizens, as contemplated by the Constitution, and to provide leadership for law reforms to accomplish this goal
The 1970s: Expanding Concern for Equal Rights. During this decade the Section’s work encompassed a panoply of civil and human rights issues facing persons of color, women, lesbians and gay men, persons with disabilities, and the economically disenfranchised, as well as civil issues confronting the criminally accused. The Section also began to address international human rights issues with its support for the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Matters of sex and sexual conduct were extremely controversial during this period as the Section’s efforts calling for opposition to discrimination based on homosexuality created uncharacteristically heated debate and were pulled by the proponents from the ABA House of Delegates agenda.
The 1980s: Increasing Humanitarian Efforts at Home and Abroad. The Section’s efforts saw some progress during the 1980s in the country and the world. The Section led an effort within and without the Association to diversify the legal profession, amending the Code of Judicial Conduct, encouraging municipalities to prohibit discrimination in private clubs, and addressing the HIV/AIDS epidemic and the attendant legal issues. The Section also began its advocacy and representation for the Homeless Project and inaugurated an Advisory Commission on Youth Alcohol and Drug Programs in the mid-1980s. The Section increased its involvement in the substantive issues related to the rights of immigrants to the United States as well as human rights activity abroad. During this period the Section initiated the International Trial Observers Project; began work with the Soviet Lawyers on human rights issues; led an election observation delegation to the Soviet Republic of Georgia; and engaged in a series of conferences co-sponsored by the ABA Sections of Litigation and International Law, the ABA Young Lawyers Division (YLD), and others. These initiatives also led to the collaboration with YLD to develop the Soviet Lawyers Internship Project funded by the Soros Foundation. This was an unprecedented program bringing scores of young Soviet lawyers to the United States to learn about the American legal system and the roles of advocates. The Association also established the Commission on Women in the Profession, led by Hillary Rodham Clinton, and the Commission on Opportunities for Minorities in the Profession, led by Dennis Archer.
The 1990s: Defending the Constitution and Bill of Rights Protections. This decade brought the struggle to save federal subsidies for the Legal Services Corporation, Medicaid and other aid programs. The Section, working with the ABA Center on Children and the Law, the Section of International Law, and others, co-sponsored a resolution urging the ratification of the United Nations Convention on the Rights of Children at a time when the United States was one of the holdouts. The Section, always concerned about women’s health care, supported federal research on women’s health issues and developed policies addressing inequities in Social Security benefits for older, widowed, or divorced women. The most controversial position ever taken by the ABA and led by the Section was the resolution that a woman has a confidential right to choose to terminate her pregnancy in consultation with her physician, consistent with the terms of the US Supreme Court’s abortion holding in Roe v. Wade. The Section also created the Thurgood Marshall Award honoring the legacy of the great Supreme Court justice and recognizing leaders of the profession. It was also during this period that the ABA elected the first women and African American presidents of the Association and adopted its current motto, “Defending Liberty, Pursuing Justice”—an attitude quite at odds with the Association of the 1950s.
There are these additional developments in the Section’s history since the 1999 account:
The New Millennium: Terrorism Strikes the United States. In February 2001 the Association, along with the Section’s leadership, established the ABA Center for Human Rights. Later that year, September 11 brought the attack on the World Trade Center in New York City, which in addition to causing death, sorrow, and destruction laid the foundation for a massive change in the legal relationship between the people in the United States and their government. Increased surveillance combined with the rise of new technologies raised new questions of privacy rights. Modern warfare in the form of drone strikes on the other side of the world has called into question centuries-old rules of engagement. The war against so-called terrorist groups rather than between nation states has led some to reconsider long-settled definitions of prisoners of war as well as fundamental precepts set forth in the Geneva Convention. The Section has addressed a variety of these issues, including calling for the closing of Guantanamo Bay, treating so-called “enemy combatants” in accordance with the rights of prisoners of war under the Geneva Convention, and other precepts of international law such as prohibitions against so-called enhanced interrogation and extraordinary rendition. In parallel, the Section continued to support the rights of members of the LGBT community, both domestically and abroad, and the Association went on record in support of marriage equality. Efforts continued challenging bias in the administration of the death penalty and clarifying women’s right to control their own health care.
2010: The Challenges of Today and Tomorrow. 2015 saw the US Supreme Court decision of Obergefell v. Hodges, guaranteeing the fundamental right to marry to same-sex couples through the Due Process and Equal Protection Clauses of the 14th Amendment. This was a landmark decision, and the ABA was on record with an amicus curiae brief to the Court.
It is not possible to highlight even a representative sample of the great work performed by individual members of this Section much less the affiliated entities and organizations spawned by this Section.
There is much still to be done. Early in 2016, we are still recovering from a worldwide recession and Credit Suisse reported that the richest 1 percent of the world’s population now owns 50 percent of its total wealth. This puts our Magna Carta celebration into an eerie perspective.
At the time of this writing, the US Department of Justice had investigated 67 municipal police departments for the systemic use of excessive violence with racial bias since 1994. Investigations are pending in Baltimore, Cleveland, Ferguson, Chicago, and more.
Initiatives for which the Section has fought have triggered an extraordinary backlash. In January 2016, the chief justice of the Alabama Supreme Court ordered the state’s probate judges not to issue marriage licenses to same-sex couples despite the 2015 ruling by the US Supreme Court. Prominent candidates for the presidency of the United States have even called for the repeal of the 14th Amendment, proclaimed that Mexican immigrants are wholesale criminals and rapists and made recommendations to ban Muslim immigrants or to permit only Christian immigrants into the United States.
Members of Congress have proclaimed that they would rather shut down the US government than permit women access to medical care through Planned Parenthood, and state legislators have mandated unnecessary and occasionally dangerous medical procedures, intentionally overriding physicians medical advice.
A sitting Justice of the US Supreme Court Justice recently suggested that African Americans will be better off in lesser schools with slower tracks where they will be more likely to perform well. This view implying separate and unequal rejects 60 years of Supreme Court precedent since Brown v. Board of Education. This presents an alarming reminder that all prior progress is subject to reversal.
The reminder was proven to be more than a pyrrhic threat when in 2013, a key provision of the Voting Rights Act of 1965 was deemed unconstitutional in the US Supreme Court’s decision in Shelby County v. Holder. The law was passed as a defense against discriminatory voting practices perpetuated largely by states that had manipulated their laws to prohibit or restrict the rights of mostly African Americans to vote in the South. Since Shelby County, all of the states requiring preclearance before enacting voting law changes have passed or attempted to pass changes. The majority of these change the laws surrounding early voting, registration, and voter ID requirements. Perhaps the most provocative of these is Texas’s Voter ID law SB 14, previously struck down under the preclearance procedure but now in effect because of Shelby County. The law requires voters to provide a state or federally sanctioned identification card with a name “suitably similar” to that on the voter register.
Such requirements are generally designed to disproportionately challenge citizens with low incomes and minorities and are especially punitive for women. According to the Brennan Center for Justice, approximately 48 percent of voting-age women have access to birth certificates with their current legal name and only 66 percent of women have any proof of citizenship with their current legal name. These laws intentionally exploit the conventions of marriage and the ritual of name change to disenfranchise women.
The Brennan Center reports that race is also a significant factor. In 11 states with the highest African American turnout in 2008, seven have new restrictions in place. In the 12 states with the largest Hispanic population growth between 2000 and 2010, nine passed laws making it harder to vote. Nearly two-thirds of states, or nine out of 15, previously covered in whole or in part by Section 5 of the Voting Rights Act because of a history of race discrimination have new restrictions since the 2010 election.
Internationally terrorists in Syria and Nigeria are brutalizing women and girls and executing so-called non-believers. The refugee crisis in the Middle East and Europe has caused cracks in the foundation of European Union open-border policies and triggered a rise in xenophobia and fascist parties in Europe.
Many of these challenges are simply new spins on old issues. But whenever and however they arise, the legal profession and Section of Civil Rights and Social Justice must respond. The Section and the ABA must seek to re-establish the basic tenets of human dignity. This is, for most of us, the principal justification for the practice of law and for that matter the legal profession.
The practice of law is likely to change more in the next few years than in the years since the Magna Carta. As it relates to civil rights and social justice, the Section must stand at the forefront, and our guiding principles must not vary. Remembering again the words of Martin Luther King Jr., “the arc of the moral universe is long but it bends toward justice.”
It is the responsibility of the Section of Civil Rights and Social Justice as well as the ABA as a whole to ensure that the bend remains true.