Today, the U.S. Ninth Circuit Court of Appeals reversed a lower court's decision to dismiss an equal protection claim brought against the Arizona Department of Corrections by a same-sex couple who were not allowed to hug or kiss during jail visits even though opposite-sex couples enjoyed the same right. The American Civil Liberties Union of Southern California and the National Center for Lesbian Rights argued the case on behalf of an Arizona same-sex couple who brought the suit after they were not allowed to hug during visits.
Karl Whitmire and his long-term partner, William Lyster, are divided by Lyster's incarceration. Despite the fact that opposite-sex partners can hug and kiss during visits, Mr. Whitmire and his partner were not allowed to show such affection during their visits. An Arizona Department of Corrections policy states that, "The following conduct shall be prohibited at visits...Same-sex kissing, embracing (with the exception of relatives or immediate family) or petting." After hugging his partner during a visit, Mr. Whitmire was warned that if it happened again, "it will be a long time" before he would see his partner again. Mr. Whitmire together with his partner filed suit against the State of Arizona on the grounds that their rights were violated by the state's discriminatory policy. A lower court sided with the state in dismissing the suit and the plaintiffs appealed the ruling to the Ninth Circuit Court of Appeals.
"Prison administrators can have reasonable rules to protect prison safety, but they can't arbitrarily penalize prisoners and visitors on the basis of sexual orientation," said Martha Matthews, Bohnett Attorney with the ACLU/SC.
The Ninth Circuit ruled that the policy may violate Whitmire's constitutional right to equal protection.
"This ruling underscores the basic principle that no matter what the context, the government cannot treat lesbian and gay people differently simply because some people disapprove of same-sex relationships," said Courtney Joslin, Staff Attorney for the National Center for Lesbian Rights.
The case will now return to the lower court for further proceedings.

LOS ANGELES - After encountering strong opposition from free speech and dance music groups, AB 1941, the so-called "Anti-Rave" legislation has died in committee. The bill, originally introduced and passed by the state Assembly, was heard by the state Senate Public Safety Committee and did not produce the required number of votes to make it out of committee.

AB 1941 would have singled out electronic music promoters and "rave" parties for differential treatment, requiring them to undergo a vague and burdensome permit acquisition process. The legislation required promoters to "present evidence before the issuance of the permit showing that the promoter is sufficiently knowledgeable about illegal drugs and drug paraphernalia." It also sought to impose new liability burdens on event organizers.

"Singling out a specific type of music event, in this case electronic music, over another is an attempt to stifle speech and cultural expression," said Tenoch Flores, Media Relations Manager for the ACLU of Southern California. "The government cannot and should not be in the business of determining what kind of parties it likes or what kind of music it deems a 'threat'."

A coalition of free speech and dance organizations including the ACLU/SC, Electronic Music Defense and Education Fund, The Drug Policy Alliance, The San Francisco Late Night Coalition, and Dance Safe voiced opposition to the bill and launched grassroots efforts to defeat the legislation. The ACLU of Southern California helped organize a letter writing campaign after it was apparent that the bill would face little opposition in the state Assembly. The campaign picked up as the as the bill was introduced in the state Senate.

"This legislation represented nothing more than an attempt to criminalize electronic dance music and youth culture," said Flores. "The bill would have denied one group of people the same level of freedom that others enjoy. Most people attend electronic music events to listen to the music, dance and meet other like-minded individuals; their rights should not be snuffed out simply because dance culture makes a few legislators uncomfortable."

LOS ANGELES - A U.S. District Court has granted the ACLU of Southern California's motion for summary judgement and held that the presence of the Mojave Desert Cross, a religious symbol, on federal land violated the Establishment Clause of the U.S. Constitution.

"This is a huge victory not only for the ACLU but also for the First Amendment," said Peter Eliasberg, staff attorney with the ACLU/SC. "Government should not be in the business of advancing one particular religion over another or denigrating one religion or another. Time and time again the courts have held that erecting a permanent religious fixture on federal land violates the United States Constitution. The violation is even plainer here, where the government refused a citizen's request to erect a symbol of another religion in the same area where the Mojave Cross stands."

The Mojave Desert Cross sits on a federal land preserve in southeastern California between the cities of Barstow, California and Las Vegas, Nevada. The preserve encompasses roughly 1.6 million acres of the Mojave Desert. The cross itself is located in a section of the preserve known as Sunrise Rock.

The National Park Service (NPS), the agency that is charged with maintaining the cross, has been on notice about First Amendment violations since 1999 when the ACLU/SC sent a letter threatening legal action if the cross was not removed. In December of 2000, the U.S. House of Representatives added a rider to an appropriations bill that prevented the use of federal funds to remove the cross.

"This is a clear cut First Amendment issue," said Peter Eliasberg. "The display of this cross on federal land is in violation of the Constitution and no amount of maneuvering or grandstanding on the part of Congress will change that."