vol. 68, no. 2

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA

BECAUSE FREEDOM CAN

PROTECT

VOLUME LXIV ISSUE 2

WHAT'S INSIDE

PAGE 2 PAGE 6 PAGE 8 PAGE 1 O PAGE 1 2

Youth March for Who's Watching You? Same-Sex Couples: For #7 Still Segregated? Brown Touch Screen Voting:

Women's Lives Surveillance in the Better or Worse, With v. Board of Education 50 Democracy Digitized or

Ashcroft Era Marriage or Without Years Later Derailed?

ACLU CHALLENGES NO-FLY LIST:

CITIZENS TARGETED AS TERRORISTS

by Stella Richardson, Media Relations Director

member of the military, a retired Presbyterian minister, and a

social activist were among seven U.S. citizens who joined the

ACLU's first nationwide, class-action challenge to the

government's secret "No-Fly" list. The suit was filed in federal

court April 6 in Seattle, Washington.

The No-Fly list is compiled by the federal Trans-

portation Security Administration (TSA) and

distributed to all airlines with instructions to stop or

that I am on this list." It was a feeling shared by all of the

plaintiffs.

The effort to challenge the No-Fly list started in the fall of

2002, when the ACLU of Northern California (ACLU-NC)

sent a Freedom of Information Act (FOIA) request to the TSA

and the Federal Bureau of Investigation (FBI), asking basic

questions about the list. The request was on behalf of two

MARYCLAIRE BROOKS

conduct extra searches of people suspected of being threats

U.S. Air Force Master Sergeant Michelle Green, who discovered ae

to aviation.

she was on a No-Fly list when she was flying on duty for the U.S.

: At the news conference announcing the suit, Michelle

government, speaking at an ACLU news conference. 6 2

Green, Master Sergeant in the U.S. Air Force, told a packed

room of reporters, "As someone who has served her coun-

try in the United States Air Force for nearly 16 years and

who obeys the laws of the land, I was shocked to discover

anti-war activists who were told they were on a "No-Fly" list

when they attempted to fly from San Francisco to Boston to

visit family. CONTINUED ON PAGE 7

CALIFORNIA LEADS THE WAY FOR SAME-SEX MARRIAGE

By Shannon Minter, Legal Director of the National Center for Lesbian Rights, and Tamara Lange, ACLU-NC Staff Attorney

0): February 12, 2004, San Francisco Mayor Gavin

oO Newsom altered the course of legal history by direct-

S58 3 5 ing the San Francisco County Clerk to stop denying

a ee marriage licenses to same-sex couples. Over the next four

a weeks, more than 4,000 same-sex couples-many surrounded

by their children and extended family members-pledged

FEATURING SPEAKERS INCLUDING:

detainee abuse story

m GAVIN NEWSOM, Mayor of San Francisco

m COLEEN ROWLEY, FBI whistleblower

m EVE ENSLER, author of The Vagina Monologues

m SEYMOUR HERSH, investigative journalist for The New Yorker, who broke the Abu Ghraib

@ RICHARD CLARKE, former National Security Advisor and author of Against All Enemies

m HOWARD DEAN, former governor of Vermont, debatng Governor BILL OWENS of Colorado

Plan to be there. Freedom depends on you.

For information and registration, go to www.aclunc.org,

or call (212) 549-2590

their lives to one another as legally wedded spouses.

Del Martin and Phyllis Lyon, the first same-sex couple

married in the United States, are a perfect example of the

commitment, devotion, and legal vulnerability of thousands

of couples previously denied the right to marry. They first

met in 1950, when they both worked for a trade publication

CONTINUED ON PAGE 8

MVM ARI a )ast Tew) gata) [b

JULY 6-8, 2004, IN SAN FRANCISCO

a Od aL

of NORTHERN CALIFORNIA

_ WELCOME TO THE ACLU NEWS.

NATIONAL ACLU

MEMBERSHIP CONFERENCE

JULY 6-8, 2004 IN SAN FRANCISCO

DON'T MISS OUT-REGISTER NOW!

We need your help to make the case loud and clear to both current

and future administrations that Americans will not sit by and

have their rights trampled. Don't miss this opportunity to make

a difference!

CONFERENCE FEATURES

The conference kicks off with ACLU president Nadine Stros-

sen, local leaders from the Bay Area and surprise guests. Hear

about the latest developments in the U.S. Supreme Court from

ACLU legal director Steve Shapiro. Connect with old ACLU

friends and make new ones over drinks and hors d'oevres.

Listen to a keynote address by ACLU executive director An-

thony Romero. Attend the Dinner and Gala Tribute to the

First Amendment: A Celebration of Freedom of Expression,

featuring world-renowned artists, writers, and performers.

SPEAKERS INCLUDE:

= Seymour Hersh, investigative journalist for The New Yorker,

who broke the Abu Ghraib detainee abuse story

_@ Richard Clarke, former National Security Advisor and au-

thor of Against All Enemies

= Howard Dean, former governor of Vermont

# Coleen Rowley, FBI whistleblower

@ Eve Ensler, author of Zhe Vagina Monologues

Gavin Newsom, Mayor of San Francisco

WORKSHOPS INCLUDE:

@ Same-Sex Marriage and Gay Rights.

@ Promises and Threats of Technology.

@ Government Intrusion, Personal Autonomy and Privacy.

PLENARY SESSIONS INCLUDE:

@ Say "I Do" to Same-Sex Marriage. Hear from ACLU clients

and politicians who are challenging the status quo.

@ Racial Profiling in America. Discuss implications of this

controversial law enforcement technique.

@ Freedom's Foundation: The First Amendment. A session on

fundamental rights such as freedom of speech and the press,

right to assembly, and separation of church and state.

@ Balancing National Security and Liberty: Keeping America

Safe and Free.

@ The 2004 Election: A Debate.

POLITICAL ACTION TRAINING:

An introduction for new activists and a refresher course for

seasoned advocates, this training is offered by community

organizing experts from the ACLU Legislative Office in Wash-

ington, DC.

ACLU-NC PRIVACY POLICY

To our members...

Direct mail appeals to our members and the general public provide opportunities to describe complicated

legal and political issues in ways not possible in other media. They enable us to explain, in detail, the benefits and

provisions of the Constitution and the Bill of Rights, the complex ways our rights can be protected in the modern

world, and the costs of preserving those rights. We use the mail to inform people of the importance of our legal

work and to solicit funds that enable us to continue our litigation, public education, and legislative lobbying.

Sometimes, as part of our member recruitment program, we exchange or rent our list of members' names to

like-minded organizations and publications.

The ACLU never makes its list available to partisan political groups or those whose programs are incompatible

with the ACLU's mission. Whether by exchange or rental, the lists are governed by strict privacy procedures, as

recommended by the U.S. Privacy Study Commission. Lists are never actually given into the physical possession

of the organization that has rented them or exchanged for them. No organization ever possesses our list and no

organization will ever see the names of the members on our list unless an individual responds to their mailing.

While direct mail appeals-under strict privacy guidelines-form the basis of our new member acquisition pro-

gram, and are key to our growth, we understand some members do not wish to receive solicitations from other

groups, and we gladly honor requests from our members to be removed from the process.

If you do not wish to receive materials from other organizations, please complete this coupon and send it to:

ACLU-NC Membership Department

1663 Mission Street, Suite 460, San Francisco, CA 94103

O I prefer not to receive materials from other organizations.

Please eliminate my name from membership exchange/rental lists.

Member #

Name

Address

City State = = Zip

ACTION CENTER:

Open throughout the conference, the activist hub is equipped with:

@ Activist Experts-Meet face-to-face with staff members

from the ACLU's Legislative Office in Washington, DC.

@ Issue Booths-Pick up information on the issues most im-

portant to you and get your questions answered.

@ Itaining Sessions-Get step-by-step instructions to take

your first action or hone your activism skills.

= Communications Hub-Compose your message and send

it to local, state and national officials.

@ Networking Bulletin Board-Connect with other ACLU

members who share your passion.

@ ACLU Store-Find ACLU publications and souvenirs.

Register today at www.aclunc.org!

executive director Dorothy Ehrlich was honored

for her longtime leadership in the civil rights community

at the Asian Law Caucus's 32nd Anniversary Celebration

April 30 in San Francisco. Attorney and caucus co-founder

Dale Minami presented Ehrlich with a framed photo of Fred

Korematsu and Ernie Besig. Besig, a predecessor of Ehrlich,

challenged the unconstitutional detention of Korematsu and

other Japanese Americans in the early 1940s.

ee Sel ee

THE QUARTERLY PUBLICATION OF THE

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA.

Membership ($20 and up) includes a subscription to the

ACLU News. For membership information call

(415) 621-2493 or visit www.aclunc.org/join.html.

Quinn Delaney, CHAIR

Dorothy Ehrlich, EXECUTIVE DIRECTOR

Rachel Swain, EDITOR

Jeff Gillenkirk, GUEST EDITOR

Lauren Asher, CONTRIBUTING EDITOR

Gigi Pandian, DESIGNER AND

EDITORIAL ASSISTANT

1663 Mission Street #460, San Francisco, CA 94103

(415) 621-2493

2 | ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF

SUPREME COURT UPHOLDS

CONTRACEPTION COVERAGE LAW

by Stella Richardson

na huge victory for working women and for reproductive

freedom, the California Supreme Court upheld a state law

requiring employers that provide prescription drug ben-

efits to include contraceptive coverage. The Court, by a 6-1

vote, rejected a claim by Catholic Charities that its religious

freedom outweighed its employees' right to contraceptive cov-

erage under the law.

"The court's decision ensures that working women, any-

where in California, can make their own birth control deci-

sions, and that employers cannot impose religious views about

family planning on employees who may not agree with them,"

said Margaret Crosby, an attorney at the ACLU of Northern

California (ACLU-NC).

The California Women's Contraceptive Equity Act requires

employers that offer health insurance with prescription drug

benefits to include coverage for prescription contraceptives.

Before the law passed in 2000,

about half of California's health

plans had excluded women's

contraceptive coverage, forcing

women to pay up to 68 percent

more for health care than men.

The law exempts religious

employers, such as churches,

mosques, and temples, whose

main purpose is to inculcate

religious values and who pri-

marily employ and serve peo-

ple who share their religious

beliefs.

In its legal challenge, Catho-

lic Charities conceded that

it does not provide a religious service, that 74 percent of its

employees are not Catholic, and that it serves the public at

large. The March 1 court ruling applies statewide to the chari-

table agency's 1,600 employees, and to 52,000 employees of

Catholic hospitals.

`The Court noted that "women during their reproductive years

spen[d] as much as 68 percent more than men in out-of-pocket

health costs," due in large part to the cost of contraception and

unplanned pregnancies. It concluded that the Act "serves the

compelling purpose of eliminating gender discrimination."

Catholic Charities v. Superior Court was closely watched na-

tionwide because the Act's exemption for religious employers

is seen as a model accommodation between efforts to extend

health coverage and claims for religious liberty. The ACLU-

NC, which drafted the religious employer exemption, submit-

ted a friend-of-the-court brief in the law's defense.

An organization representing Catholic Charities, as well as

Catholic hospitals and schools, said it would consider an ap-

peal to the U.S. Supreme Court. The ACLU Foundation of

Southern California and ACLU of San Diego and Imperial

Counties are co-counsel in the case.

OTHER CHURCH-STATE ISSUES

IN THE COURTS:

STATE AID FOR RELIGIOUS SCHOOLS

In another victory, the California Court of Appeal ruled that

bond financing of buildings and equipment for pervasively re-

ligious schools that discriminate in hiring and restrict admis-

sions along religious lines violates the California Constitution.

The California Statewide Commu-

nity Development Authority had

filed a petition asking the court

to approve conduit financing for

three Southern California religious

schools that integrate fundamen-

talist religious doctrine into their

course work and extra-curricular

activities.

The ACLU-NC argued that

by issuing tax-exempt bonds, the

government was providing a form

of aid to the religious institutions.

Both the trial and appellate courts

agreed with the ACLU's analysis.

The government agency has asked

the California Supreme Court to review the case.

PLEDGE OF ALLEGIANCE ARGUED

The ACLU urged the U.S. Supreme Court to uphold the

Ninth Circuit Court of Appeals' 2002 ruling striking the

phrase "under God" from the Pledge of Allegiance, because

public schools are constitutionally barred from linking patrio-

tism and religion.

Michael Newdow originally brought the case, Elk Grove

Unified School District v. Newdow, against his daughter's public

school district, where young children are asked to recite the

Pledge. Newdow argued that the district's Pledge of Allegiance

policy directly interfered with his parental right to influence

his daughter's religious development and, at the same time,

violated the Constitution's prohibition against government

entanglement with religion. He argued his case before the

LEGAL BRIEFS

Supreme Court in March.

The ACLU noted in a friend-of-the-court brief that Con-

gress added the phrase "under God" in 1953, at the height

of the anti-communist McCarthy Era. In signing the bill,

then-President Eisenhower said that the phrase "under God"

was added so that schoolchildren would "daily proclaim. ..the

dedication of our nation and our people to the Almighty."

"A PROFESSION THAT WE

ARE A NATION `UNDER

GOD' IS IDENTICAL,

FOR ESTABLISHMENT

CLAUSE PURPOSES, T0

A PROFESSION THAT WE

ARE A NATION "UNDER

JESUS,' A NATION

`UNDER VISHNU,' A

NATION `UNDER ZEUS,'

OR A NATION `UNDER NO

GOD.' "

-NINTH CIRCUIT COURT OF

APPEALS

In its 2002 ruling, the

Ninth Circuit Court of Ap-

peals found that "a profession

that we are a nation `under

God' is identical, for Estab-

lishment Clause purposes,

to a profession that we are a

nation `under Jesus, a nation

`under Vishnu, a nation `un-

der Zeus, or a nation `under

no god,' because none of these

professions can be neutral

with respect to religion." The

appeals court added that the

coercive effect of this policy

is "particularly pronounced

in the school setting given

the age and impressionability

of schoolchildren."

Joining the ACLU in its

friend-of-the-court brief are

Americans United for Sepa-

ration of Church and State

and Americans for Religious

Liberty. The Court has received almost 50 such briefs in the

case, representing the broad range of opinion on this contro-

versial issue. @

ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF | 3

COMPASSIONATE RELEASE

COULD SAVE LIVES, MONEY

by Jeff Gillenkirk, Guest Editor

hile serving a life sentence for rape and assault, Steven

Martinez was stabbed in the neck by fellow inmates

at Centinela State Prison-an injury that left him

paralyzed from the neck down. As a result, Martinez requires a

high level of medical care that his parents allege prison officials

are either unwilling, or unable, to perform.

Under legislation currently proposed in Sacramento and

supported by the ACLU and allies, Steven Martinez would be

Steven Martinez with his sons, Stevie, age 10, and Christian,

age six, in the visiting room at Corcoran State Prison. Children

of medically supervised inmates are only allowed to visit for two

hours every three months. Able-bodied inmates can see their chil-

dren every week.

eligible for "compassionate release" to be cared for outside of a

prison setting. Assembly Bill 1946 would require that perma-

nently incapacitated and dying prisoners and their families be

notified of their rights to early release, and extend the period

of release for terminally ill inmates from six months to a year

before their anticipated death.

An earlier version of this legislation was vetoed by then-

Governor Gray Davis. The current budget crisis has revived in-

terest in compassionate release, with correctional expenditures

swallowing an ever larger slice of the state budget pie. Alice do

Valle, campaign coordinator for Justice Now, estimates that

California could save more than $52 million over the next 10

years by passing the new legislation.

"Compassionate release is both humane and cost-effective,"

ACLU's legislative office in Sacramento wrote to members of

the State Assembly. "The release of terminally ill and medi-

cally incapacitated prisoners who can no longer pose a threat

to the public safety can save the state taxpayers hundreds of

thousands of dollars and provide these men and women with

appropriate end-stage medical and palliative care."

The cumbersome and secretive nature of the notification

process under current law often leaves family members or ad-

vocates of dying prisoners in the dark about the inmate's right

to release. Many of those eligible for compassionate release die

before the process is complete. An Open Forum article in the

San Francisco Chronicle last December told of two terminally

ill women who died in state prison custody, despite qualify-

ing for compassionate release. "They died hospitalized and

bed ridden, shackled to their beds, and guarded 24 hours a

day by security officers earning overtime pay," wrote Rashida

Edmondson, a legal advocate for Justice Now.

Steven Martinez applied for compassionate release in 2001.

His request was supported by the prison warden, but turned

down by the director of prisons, Edward Alamedia, who re-

SACRAMENTO REPORT

over increased jail time. Other cree budgeting mea-

sures proposed for the Department of Corrections by the

. oe and its allies indude

4 | ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF

signed recently after a federal investigation began into the

state prison system. Corrections officials estimate that Marti-

nez, 34, may be California's most expensive inmate. Surgery

and rehabilitation for a bedsore wound last year cost more

than $600,000-nearly half of which was for guards to watch

him around the clock. A recent study shows that by releasing

Martinez and the department's other long-term care wards,

the state could realize savings in the millions of dollars.

"STEVEN'S BODY IS

DESTROYED FOR

LIFE... THERE |S

NOTHING ELSE THE

STATE OF CALIFORNIA

CAN DO TO PUNISH

HIM. BUT THEY WON'T

LET HIM 60."

STEVEN MARTINEZ'S

MOTHER, NORMA

MARTINEZ

But compassionate release isn't

only about saving money-it's

about compassion. "Steven has

no bladder or bowel control

and is an insulin-dependent dia-

betic," says his mother, Norma

Martinez. "He can't take care of

himself."

Norma Martinez and her hus-

band Charles have been petition-

ing for compassionate release for

Steven since his stabbing, to no

avail. "Steven's body is destroyed

for life; Mrs:

with obvious anguish. "There is

Martinez said,

nothing else the state of Califor-

nia can do to punish him. But

they wont let him go." m

TAKE ACTION

Urge the governor to sign AB 1946, the

Compassionate Release Bill, when it reaches

his desk.

Call the governor's office at (916) 445-2841

and say:

"I am a California voter, and I urge the gov-

ernor to sign AB 1946. The bill would allow

compassionate release of dying prisoners and

potentially save the state a lot of money."

has conenputed cent to the a number of inc

: 7 7 dicho: fom for nonviolent offenders, _

_ Estimated sovinge $ 1 00 million

YOUTH MARCH FOR WOMEN'S LIVES

By Danni Biondini and Cassandra Mitchell, ACLU Friedman Project Youth Activist Committee Members

pril 25, 2004 - an epic day in women's history. It's been

over 30 years since the Supreme Court legalized abor-

tions, but the anti-choice activists refuse to accept that

a woman's body, mind, and spirit belong to her alone. Since

1995, states have passed nearly 400 measures blocking access

to essential reproductive health services. As a result, reproduc-

tive health care has become increasingly out of reach for many

women, particularly poor women, women of color, young

women, and women living in rural areas.

The "March for Women's Lives" was the pinnacle of the

current reproductive debate over whether women should have

the right to choose, whether they should be educated about

their rights, and whether or not family planning should

be available to women of all ages. Close to a million

people filled the National Mall in Washington,

DC to demand that women's reproductive

freedoms be safeguarded forever.

Seven Youth Activist Commit-

tee (YAC) members and two staff

members from the Friedman

First Amendment

Education Project

represented _ the

ACLU of North-

erm California

(ACLU-NC). We

wore fuschia shirts

that "My

Body is not Public

Property" and_bel-

read

lowed chants such as

"A-C-L-U, we defend

your right to choose!"

Along with this ener-

getic bunch, thou-

sands of other ACLU

members marched

EVELINE CHANG

among the crowd.

We felt honored

to march, realizing we

ACLU Friedman Project Youth Activist Committee Members

Jessica Medina and Maraya Massin-Levey chanting `A-C-L-U,

we defend your right to choose!" at the March for Womens Lives.

were a significant part of his-

tory. We marched because we

wanted to guarantee that our

constitutional rights and those

of future generations would be

protected.

"It's our constitutional right

to privacy," said 18-year-old

Jessica Medina, "so the govern-

ment cannot tell us what to do

with our own private lives and

bodies." Many men and women

alike are concerned about stop-

ping the backwards movement

of abortion laws before women

are forced once again to have il-

legal back alley abortions, from

which many women died.

"At this point in our history,

(c)4JUDY G. ROLFE

it's one of the most important

said

Maraya Mas-

battles,"

sin-Levey, 17. "Women's rights have

progressed so far [that they should

not move backwards]. This march is

necessary."

YAC members

feeling truly inspired. We hope to

returned home

spread awareness about the continu-

ing legislative battle that women

face and ultimately, bring about

change. @

For more information about the March

for Women's Lives, see:

Official March website:

http://www.marchforwomen.org/

A

ACLU March for Women's Lives website:

http://www.aclu.org/marchforwomen

ACLU exedutive director Anthony Romero (center) helps lead Aprils historic march for

reproductive freedom in Washington DC.

The ACLU-NC group. Top row: Eveline Chang, Danielle Silk,

Lillian Junglieb, Claire Greenwood, Jessica Medina, Danni

Biondini, Cassandra Mitchell, Maraya Massin-Levey. Bottom

row: Shayna Gelender and Tynan Kelly,

Over 750 high school students attended the ACLU

of Northern California (ACLU-NC) Youth Rights

Conference on March 10 at U.C. Berkeley. Pictured

above (I-r) are Friedman Project Youth Activist

Committee (YAC) members Jessica Medina, Ikkah

Espinoza, Nick Stromberg, and Adam Chang, and

Friedmand Project director Eveline Chang.

After watching an engaging performance by the

Media Project: Theater for Incarcerated Women, and

listening to keynote speeches from conscientious ob-

jectors, the students broke into workshops on sub-

jects ranging from "Education not Incarceration,' to

"So What Exactly is Environmental Racism?" The

annual conference is prepared and run primarily by

the high-school student members of the YAC.

For information on the YAC call Eveline Chang at

(415) 621-2493 x337.

ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF | 5

By Elaine Elinson, ACLU News Contributor

THE VEIL ON

RNMENT

ILLANCE

hen Camille Russell, the president of Peace Fresno, read an obituary

in the Fresno Bee, she made a shocking discovery. One of their mem-

bers, who had participated in meetings, vigils and demonstrations for

several months, was a government spy.

"It put a face on the Patriot Act," said one Peace Fresno

- activist.

It is a face that is becoming both increasingly familiar

and threatening as the federal government -with local

law enforcement allies-steps up a campaign of domestic

surveillance. Such widespread intrusion into citizens' lives

has not been seen for more than 30 years, when the govern-

ment spied on anti-war groups,

the Black Panthers, and even

Reverend Martin Luther King,

Jr. as part of the FBI's notorious

COINTELPRO program.

The Washington Post, citing sta-

tistics released on April 30 by the

U.S. Department of Justice, noted

that for the first time in history,

the number of secret surveillance

warrants issued in anti-terrorism

and espionage cases exceeded .the

total number of wiretaps granted

in criminal cases in 2003.

"Unfortunately, history has

shown that expansions of domestic

surveillance powers are used to vio-

late the freedoms guaranteed by the Constitution and the Bill

of Rights," said ACLU of Northern California (ACLU-NC)

executive director Dorothy Ehrlich.

The ACLU-NC has selected government surveillance as a

priority issue this year.

"Post-9/11 actions by the

SUCH WIDESPREAD

INTRUSION INTO CITIZENS'

LIVES HAS NOT BEEN

SEEN FOR MORE THAN

30 YEARS, WHEN THE

GOVERNMENT SPIED ON

ANTI-WAR GROUPS, THE

BLACK PANTHERS, AND

EVEN REVEREND MARTIN

LUTHER KING, JR. AS PART

OF THE FBI'S NOTORIOUS

COINTELPRO PROGRAM.

government have brought

a new sense of urgency

to this issue," explained

ACLU-NC

director

associate

Bob Kearney.

"We plan to mount a

multi-faceted campaign

to expose and oppose

government surveillance.

We are going to watch the

watchers."

Kearney acknowledged

the difficulty inherent in

organizing a campaign to

challenge the growth of

government surveillance.

"It is hard to fight some-

thing that's so secret by

its very nature - it's like

fighting with a shadow.

And because of the his-

torical consequences of

government surveillance on groups and individuals, people are

naturally intimidated."

As part of the Safe and Free Campaign, the ACLU's nation-

wide campaign to challenge violations to civil liberties since

9/11, the national ACLU published a new report, "Bigger

Monster, Weaker Chains: The Growth of an American Sur-

veillance Society." It details how high-tech advances-includ-

ing DNA chips, data-mining, brain wave fingerprinting, and

implantable microchips-coupled with loosening regulations

on government surveillance, unchecked private video and data

surveillance, and powerful new surveillance infrastructures

combine to form an unprecedented threat to our privacy rights.

(the full report is available for

free at www.aclu.org/privacy.)

MUSLIMS, POLITICAL

ACTIVISTS TARGETED

Kearney noted that the infil-

tration of Peace Fresno is just

one example of the kind of gov-

ernment surveillance that is oc-

curring in northern California,

including surveillance of reli-

gious minorities. As with many

other post-9/11 civil liberties

violations, Muslims have borne

the brunt of suspicion. Anec-

dotal evidence indicates that

mosques have frequently been

targeted for surveillance. This has a chilling effect on religious

freedom and is a form of racial profiling, yet many Muslims

have been understandably hesitant about coming forward. The

ACLU-NC plans to work closely with the Muslim community

to help bring these stories to light.

Political dissenters are also in the government's sights. The

ACLU-NC has a long history of challenging surveillance and

infiltration of anti-war activists, from federal spying on the

Socialist Workers Party during World War II, to the FBI's

use of its National Crime Information Center to track and

monitor anti-Vietnam War activists, to the Reagan Adminis-

tration's spying on domestic opponents of U.S. intervention

in El Salvador.

The infiltration of Peace Fresno, and the use of local law en-

forcement agents as part of the national Joint Terrorism Task

Force, indicate that Attorney General John Ashcroft's Justice

Department is engaged in active surveillance of groups that

Oppose current government policy. The ACLU-NC plans to

monitor government surveillance at demonstrations, rallies,

and meetings and will set up a hotline for local political groups

to report suspected incidences of infiltration.

HOMELAND SECURITY V. STRIKERS

During the recent supermarket strike, agents of the Contra

Costa Sheriffs Department Homeland Security Unit conduct-

ed undercover surveillance of labor activists on picket lines in

Contra Costa County and San Francisco. ACLU-NC Police

Practices Project director Mark Schlosberg is investigating why

homeland security agents were spying on people engaged in

legitimate trade union activity.

"This affiliate was founded to protect the rights of labor

activists who were under siege by the state militia during the

1934 dockworkers' strike," said Ehrlich. "It is ironic and tragic

"ment snooping' inthe extreme" = _

_ "Ivis still a shock that our small group, in town

_ that is off the beaten path, was being infiltrated," said _

Nick DeGraff, a Peace Fresno activist. "It put a face

to the Patriot Act." DeGraff observed that i

_ group was being infiltrated, it was probab

elsewhere too. "This should be a lesson

_ ists all across the country.'

oy

c ehic.

RESOLUTIONS WATCH

TOTAL NUMBER OF RESOLUTIONS PASSED

AGAINST THE USA PATRIOT ACT AS OF MAY 25, 2004:

319 nai stares

Since our last report in March, the following northern

California communities have passed resolutions:

ALAMEDA COUNTY (MARCH 16)

SANTA CLARA (MARCH 23)

CALISTOGA, CA (APRIL 6)

that on our 70th anniversary we are still fighting for the rights

of labor to organize freely without government harassment."

Last year, in the wake of the Oakland police shooting live

ammunition at anti-war protesters at the Port of Oakland,

California Attorney General Bill Lockyer issued guidelines for

police surveillance, Criminal Intelligence Systems: A California

Perspective. Currently, the ACLU-NC Police Practices Project

is making public records requests from sheriff and police de-

partments to determine how local law enforcement agencies

are implementing Lockyer's guidelines. If the ACLU-NC

research shows that the current guidelines are not effective in

curbing law enforcement abuses, the Project will campaign for

more streamlined, improved guidelines.

"The leadership and membership of the ACLU-NC have

taken a bold step in selecting government surveillance as our

priority issue for the year," Kearney said. "If we can expose and

challenge government spying on religious minorities, whose

only crime is attending religious services, and political activists

who are exercising their First Amendment rights of freedom of

speech and assembly, we will truly be making this state both

safe and free." @

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6 | ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF

N 0 = FLY CASE CONTINUED FROM PAGE 1

"We wanted to find out, among other things: how a name

gets on the list; how a name can be taken off the list; and

whether First Amendment protected activity is ever a reason

for being placed on the No-Fly list," said Jayashri Srikantiah,

then ACLU-NC's associate legal director.

When the government did

"THESE PASSENGERS not respond, ACLU-NC filed a

HAVE NO IDEA WHY wStit in USS. District Court for

THEY HAVE BEEN

PLACED ON THE

NO-FLY LIST AND

NO WAY TO CLEAR

THEIR NAMES."

-ACLU STAFF ATTORNEY

REGINALD T. SHUFORD

northern California in the sum-

mer of 2003. In response to the

suit, the TSA and FBI released

some information that indicated

the government was fully aware of

the problems surrounding the No-

Fly list. But "even more troubling,"

said Srikantiah, "at the same time

that the government was aware of

problems with the list, we found

out that they may have distrib-

uted it internationally to embassies

across the world and domestically

to local law enforcement agencies." The ACLU-NC is still try-

ing to get more information about the No-Fly list through its

2003 FOIA lawsuit.

Meanwhile, the national ACLU, ACLU of Washington,

ACLU-NG, and cooperating attorney Michael E. Kipling of

the Summit Law Group in Seattle have filed the first nation-

wide legal challenge. The ACLU is asking the court to declare

that the No-Fly list violates airline passengers' constitutional

rights to freedom from unreasonable search and seizure and

ARE YOU RED,

YELLOW OR GREEN?

As early as this summer, the federal Transportation Security

Administration (TSA) plans to begin testing a new security

program called CAPPS II (Computer Assisted Passenger

Prescreening System II) to collect data on the estimated 100

million Americans who fly on commercial airlines each year.

Under CAPPS II, every time you reserve a flight your name,

address, phone number, and date of birth will be sent through

a computer program that uses secret law enforcement and

intelligence databases to generate your "risk assessment" as a

flyer. Not even the TSA will know what specific databases or

risk criteria are used.

If your assessment is green, you will undergo only stan-

dard scrutiny at the airport. If your rating is yellow, you will

receive more intensive scrutiny. And if you are rated red, you

will be barred from flying and probably turned over to law

enforcement.

TSA officials project that three to four percent of the ap-

proximately 100 million people who fly each year will fail

to get a green light. "CAPPS II threatens both our privacy

and our freedom," said ACLU-NC staff attorney Ann Brick.

The dangers of using massive commercial and government

databases to make decisions about what color risk we are is

obvious. Moreover, the kinds of databases that will be incor-

porated into CAPPS I] are likely to grow.

"Because CAPPS II operates behind a veil of secrecy, indi-

viduals will not know why they have been blacklisted and have

no way of challenging their label," Brick added. "Anyone could

get caught up in this system, with no way to get out." @

TAKE ACTION

GIVE CAPPS Il A RED LIGHT

Go to www.aclunc.org/takeaction.html. Or call the

U.S. Capitol Switchboard TODAY! (202) 225-3121.

Ask for the office of your Senator or Congressional rep-

resentative and leave the following message:

"As your constituent, I urge you to oppose the

CAPPS II program. I am deeply concerned that this

program will put the government on a path towards

ever more intrusive background checks, and hinder the

security at our nation's airports."

to due process of law under the Fourth

and Fifth Amendments. The ACLU is

also asking the TSA to develop satisfac-

tory procedures that will allow innocent

people to fly without being treated as

potential terrorists and subjected to hu-

miliation and delays.

Reverend John Shaw, from Sammamish,

Washington, is one of the plaintiffs. "I am

joining the ACLU lawsuit because I have

been repeatedly interrogated, delayed, and

have experienced `enhanced' screening

procedures and detention since 2002. I

have also tried without success to have my

name removed from the list," said the 74-

MARYCLAIRE BROOKS

year-old minister.

Another plaintiff, Mohamed Ibrahim,

voiced concerns about being targeted

because of his political activity. "I believe

that I am on the list because I have exer-

cised my protected First Amendment rights. For instance, I have

regularly challenged the scope and purpose of the USA Patriot

Act." Ibrahim works with the American Friends Service Com-

mittee and has spoken on behalf of Amnesty International.

"This case is about innocent people who found out that

their government considers them potential terrorists," said

Reginald T. Shuford, an ACLU senior staff attorney who is

lead counsel in the national case. "For our clients and thou-

sands like them, getting on a plane means repeated delays and

the stigma of being singled out as a security threat in front

of their family, their fellow passengers, and the flight crew,"

NO-FLY PLAINTIFFS

(Green vu. Transportation Security Administration)

MICHELLE D. GREEN, 36,

has served her country for

nearly 16 years as a Master

Sergeant in the U.S. Air

__ Force. On military orders

_to fly from Fairbanks, AK,

to Seattle, WA, she was

told she was on the No-

Fly list and subjected to a

physical pat down and other enhanced screening proce:

dures. She is the mother of three children. _

sain ae an at

_ torney from Belleville, I

linois, is a member of the

__ Board of Governors of the

Illinois State Bar Associa-

__tion. He was flagged atthe _

airport 20 to 30 times, on

some occasions in front of

his family. He is married

with three children.

JOHN SHAW, 74, is a re

tired Presbyterian minister

from Sammamish, Wash-

ington. He was flagged

while uraveling from Se-

attle co Medford, OR and

told he was on the FBI

list. He was stopped again

when he traveled to South

Africa. He is married with

five adult children.

DAVID C. FATHI, 41, is a

senior staff attorney with

the ACLU National Pris-

on Project in Washington,

DC. Of Middle Eastern

descent, he was flagged

es

(L-R) Plaintiffs Mohamed Ibrahim and Sarosh Syed, ACLU of Washington staff

attorney Aaron Caplan, and ACLU-NC staff attorney Jayashri Srikantiah, speaking

at the April 6 news conference at the ACLU of Washington, in Seattle.

Shuford added. "What's worse, these passengers have no idea

why they have been placed on the No-Fly list and no way to

clear their names."

"When my young children see a police officer-a `good

guy -asking questions of me, I can see them wondering: Is

Daddy a bad guy?"

been flagged more than 20 times at airports.

said David Nelson, an attorney who has

"I am a patriot,

and I would never stand by and let anyone even imply other-

wise. And yet someone in my government has done exactly

that: someone I have never met has branded me a potential

terrorist." @

while traveling from Washington to Milwaukee,

again upon his return. _

ing home to F _

PA for Thanksgiving oe _

again upon her return. She

_ was told that her name ap-

peared on the No-Fly List.

SAROSH SYED, 26, is a

special projects coordina-

tor at the ACLU of Wash-

ington in Seattle. Syed

was lagged on five differ-

ent occasions. Syed is a

common Muslim name

in Pakistan, where he was

bern.

KEEP AMERICA SAFE AND FREE. GET CAMPAIGN INFORMATION AND UPDATES AT

ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF | 7

seston

SAME-SEX MARRIAGE conrnueo rrom pase

in Seattle. Throughout their five decades together, Del and

Phyllis have shared a passionate commitment to the well-be-

ing of lesbian, gay, bisexual, and transgender people. In the -

1950s, they founded the Daughters of Bilitis, the first national

political organization for lesbians. In recent years, they have

advocated for the rights of LGBT seniors. Their relationship

has lasted longer than most marriages, but without the legal

protections.

For Del and Phyllis, being married means not having to

worry about whether their documents are in order if one of

them is rushed to the hospital, or

that one of them will lose their

EQUAL PROTECTION

OF THE LAWS

REQUIRES THAT

PEOPLE BE

GOVERNED BY

EQUAL LAWS;

THE CREATION OF

TWO SEPARATE

SYSTEMS FOR

GOVERNING FAMILY

RELATIONSHIPS

VIOLATES THAT

PROMISE.

home when the other passes away.

It means knowing that they will

have the right to live together if

they go into a nursing home, and

that the vows they have lived for

over 50 years are finally being re-

spected by their government.

The day after Del and Phyl-

lis married, two anti-gay groups

filed separate lawsuits seeking

emergency orders prohibiting San

Francisco from continuing to issue

licenses to same-sex couples. Nei-

ther lawsuit was successful. Within

a week, two different judges in two

separate hearings found that al-

lowing same-sex couples to marry

does not cause anyone irreparable

harm and refused to enjoin the

City's actions.

Shortly after those decisions,

Attorney General Bill Lockyer

filed a new action in the California Supreme Court, as did

one of the anti-gay groups. On March 11, the Court issued a

temporary order directing San Francisco to stop issuing mar-

tiages licenses to same-sex couples. The Court will hear oral

arguments on May 25 to determine whether the city exceeded

its authority by relying directly on the California Constitution

to end marriage discrimination. It is not expected to rule on

the constitutionality of the marriage restriction itself.

The day after the Supreme Court ordered San Francisco to

stop issuing licenses, Woo v. Lockyer was filed in San Francisco

Superior Court challenging the California statutes that deny

marriage to same-sex couples. San Francisco City Attorney

Dennis Herrera filed a similar challenge, and the two cases are

now consolidated.

How will the California courts ultimately resolve these

cases? If precedent is any indication, the outlook is positive.

In 1948, the California Supreme Court became the first state

court in the nation to strike down laws prohibiting interracial

marriage in Perez v. Lippold, nearly 20 years before the U.S.

Supreme Court did so in 1967.

Noting that the "essence of the right to marry is the free-

dom to join in marriage with the person of one's choice,"

the Court rejected the state's arguments that the marriage

laws did not discriminate because they prohibited both

THE CURRENT MARRIAGE

LAWS VIOLATE

THE CALIFORNIA

CONSTITUTION'S DUE

PROCESS, PRIVACY,

AND EQUAL PROTECTION

PROVISIONS BY MAKING

THE RIGHT TO MARRY

DEPENDENT ON A

PERSON'S GENDER AND

SEXUAL ORIENTATION.

white people and people of

color from marrying some-

one of a different race. The

Court held that "the fact

. that the discrimination

has been sanctioned by the

state for many years does

not supply ... justification."

The Court also rejected the

government's request to

continue discriminating

because 29" other states

prohibited interracial mar-

triage and California had

always done so.

Likewise, California's

current restriction on mar-

riage cannot be justified

simply because it prohibits

both men and women from

matrying someone of the same sex, or because it has been in

place for many years and reflects a "traditional" view of mar-

riage. Rather, the current marriage laws violate the California

8 | ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF

uch of the press coverage. it

spouses and children,

PHUNG-Wo0 FAMILY

Lancy Woo (left) and Cristy Chung, pictured here

with their five-year-old daughter, Olivia, have been

together for 16 years. "Its for both legal reasons and

love and commitment that marriage is important to

us," says Cristy. `Im a stay-at-home mom, and there

are so many ways where legally our family isnt pro-

tected. And it' also about love, because were always

saying we want to spend the rest of our lives together.

I want to tell the world."

GIGI PANDIAN _

Constitution's due process, privacy, and equal protection

provisions by making the right to marry dependent on a

person's gender and sexual orientation.

As with racial equality, California has been a pioneer in

ensuring gender equality within marriage. Since the late

1800s, the state has abolished laws restricting the rights of

married women to own and manage property, adopted no-

fault divorce and community property rules, eliminated

the marital exemption for rape, and prohibited the use

of gender stereotypes in custody decisions. California has

eliminated all gender-based rules and distinctions relating

to spousal rights-except for the statutory requirement

that marriage must be between a man and a woman.

Restricting marriage to different-sex couples may be

upheld only if it is necessary to advance a compelling state

interest-but no such interest exists. Equal protection of

the laws requires that people be governed by equal laws;

the creation of two separate systems for governing family

relationships violates that promise.

Fifty-six years after Perez, the California Supreme

Court has another opportunity to hold up the beacon

light for liberty, human dignity, and marriage equality.

Allowing same-sex couples to marry will not harm dif-

ferent-sex married couples in any way; nor will it jeop-

ardize or undermine the institution of marriage. To the

contrary, the institution of marriage in California will

be strengthened and revitalized by ending an arbitrary

and prejudicial restriction that excludes and stigmatizes

thousands of loving, committed California couples and

their families. @

ACLU BECAUSE FREEDOM CAN'T PROTECT ITSELF | 9