News & Commentary

Saturday was a beautiful and sunny day here in Southern Maine, but I spent it inside.  I had the opportunity to present a "know your rights" training to a group of students at Cape Elizabeth High School who were involved with their Gay, Straight and Transgender Alliance (GSTA). Because it was a small group, I had the privilege of sharing some of my own personal story with the students present.  While talking about going to high school in the late 90s, it occurred to me that several of these students were just being born when I graduated. Their whole lives have occurred since I finished my senior year and began my undergraduate studies! When I was in high school at a private, religious institution, it was against the student code to be gay or lesbian. Public schools cannot legally have rules like that in place, but many of the schools here in Maine realize they have to go the extra mile to help Lesbian, Gay, Bisexual and Transgender (LGBT) students feel welcome and safe. This Saturday, I met teachers who were a prime example of the kind of caring and compassionate professionals who work hard to eliminate bias and bullying in the hallways and classrooms across our state. The students themselves work to educate one another on how to be more open and inclusive. I get to show up for a presentation and take it all in.  Bullying is this awful thing that those of us who did not attend school in the age of social media cannot fully understand. There's never a break and too often, LGBT students are targets. A young woman took her own life last week in our state. Allegedly, she was the target of bullying because she was exploring her sexuality.  Stories like hers break my heart. Days like Saturday help it heal.  Our sympathy to this young woman's family, friends and teachers who are trying to sort through grief and the wide range of emotions that comes with it. We've come so far and sometimes, it is not always enough. We know there is more work to be done and we are committed to doing it.  If you are a youth who is feeling alone, confused or in crisis, please call The Trevor Lifeline at 1-866-488-7386 for immediate help or visit the Trevor Project online. 

If you’ve never heard of Myriad Genetics, now might be the time to become acquainted. Myriad is a molecular diagnostic company, and they own part of your body. More specifically, they own patents on two human genes called BRCA1 and BRCA2, both of which are associated with inherited risk of breast and ovarian cancer. We all have these genes, but people with certain mutations are much more likely to experience cancer in their lifetimes.   Because Myriad owns the patent on these genes, they have the exclusive rights to stop all clinical testing and research done on the genes. Their monopoly on the genes makes it impossible for women to access alternate tests or get a comprehensive second opinion about their results. And it also allows Myriad to charge a high price for its tests.   This is probably the point where you expect a big “April Fools!” announcement. A private company can’t own part of your body and keep other researchers from even looking at it, right? Sadly, gene patenting is no joke. However, if the ACLU is successful in our current legal challenge, it might be a thing of the past.   In just a couple weeks the Supreme Court will hear our lawsuit, Association for Molecular Pathology v. Myriad Genetics, which challenges the basic idea that human genes can be patented. The Court has consistently said that products of nature and laws of nature are not patentable. Myriad claims that they “invented” the genes in question because they “isolated” them and removed them from the rest of the genome. We think that’s ridiculous and we’re hoping the Court agrees. And with roughly 20 percent of human genes already patented, their ruling won’t just affect these two genes, either.   For more information on gene patenting and the ACLU’s upcoming lawsuit, click here.

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. Transgender Athletes: The Maine Principals’ Association approved a policy for transgender athletes in Maine’s high schools. Equality Maine applauded the decision and the effort of the Maine Principals’ Association to make athletic participation more accessible to transgender students. Read the Bangor Daily News article here.   Marriage at the Supreme Court: Prop 8 The Supreme Court this week heard two court cases dealing with same-sex marriage this week. On Tuesday, the court heard Hollingsworth V. Perry, Commonly referred to as the “Prop 8” case.  When the California Supreme Court legalized same-sex marriage, California passed Proposition 8, which amended the state constitution there to overturn the Supreme Court’s decision. It’s gone through some interesting legal turns since: see a break down here. The ACLU filed an amicus brief in the case that will hopefully end in marriage being legal, at a minimum, in California.   Defense of Marriage Act On Wednesday, the Supreme Court heard United States v. Windsor, a challenge to the Defense of Marriage Act brought in part by the ACLU. When her partner Thea died, Edie had to pay an extraordinary sum in taxes that she wouldn't have had to pay if the federal government recognized their marriage. Read more about how the ACLU helped get to this moment. Watch a moving video of Edie Windsor here.   Cellphone Location Data: If somebody knows where you are, they can figure out who you are. That somebody could be the government or a private corporation, but in a report published this week, it was researchers at MIT and Harvard who revealed that, “anonymized cell phone location data demonstrate patterns of behavior that could be used to identify a person.” In this case, they did so with 95 percent accuracy. Read the Slate article here. Read Edwards blog post on cell phone tracking here.

Your cell phone is tracking you.  We just can't say this enough at the ACLU. Everywhere you travel with a cell phone can be recorded and traced.   What is happening right now: Police use various methods to track cell phones.

For those of us who are lucky enough to get to spend our first year or two after law school working for a judge, the experience invariably shapes our expectations about who a judge is and how she should go about her work. My judge set a high bar (clerks always use the possessive when referring to their bosses). Justice Susan Calkins was both the model of the kind of lawyer that I hoped to be--one who tries to use the law to make people's lives better--and the kind of judge that I hoped would hear my client's cases--careful, thoughtful, and conscious of the real-world impact of legal interpretation. We decided at the ACLU of Maine that we would write blog posts about women that we admire for Women's History Month, and it didn't take me long to decide on a topic (though Ed's choice of Joan Benoit Samuelson is pretty great too). Susan Calkins began her legal career at Pine Tree Legal Assistance in 1970, as a fellow in the Presque Isle Office. Three years later, she became the director of Pine Tree, which she led until 1976. The 1970s were a time of great expansion and experimentation in legal services. The landmark welfare reform cases like Goldberg v. Kelly gave lawyers for the poor new opportunities to protect their clients. Pine Tree Legal was at the forefront of these developments, and Susan, her husband Hugh and Portland attorney Bob Mittel brought one of the most important civil rights cases of the era, Maine v. Thiboutot, which recognized that the federal civil rights act, 42 U.S.C. 1983, can vindicate statutory as well as constitutional rights. Susan was appointed to the Maine District Court in 1980, and she was later named the first Chief Judge of that court. She served briefly on the Maine Superior Court, and in 1998 she was appointed by Governor King to the Maine Supreme Judicial Court, where she served until 2007. I worked for Justice Calkins from 2002 to 2003, and one of the things that really stuck with me was how hard she worked. I don't think I was ever in the office before her, and on days when the Court was not hearing cases, it seemed like she rarely left her office--reading through briefs, drafting notes to herself, her clerks, and her colleagues, drafting opinions. The first case that I was assigned to research as a clerk involved moose hunting. Not having studied moose hunting law in school, I was inclined to think this was perhaps a joke played on the new clerk from out-of-state. But for Justice Calkins, there was really no such thing as a joke case--every case involved real people, and the court's decisions would have a substantial impact on their lives. She was always cognizant of that, and she taught us to be cognizant of it as well. If you visit the Maine Supreme Judicial Court courtroom in Portland, you can see Justice Calkins's picture over the seating gallery to the right of the bench. John Hart Ely once wrote of his judge, Chief Justice Earl Warren, that you don't need many heroes if you choose carefully. I have always found captures my feelings about my judge as well.

It's Tuesday, but I'm still coming down from a very full weekend! My partner Trish and I were busy attending the annual Equality Maine dinner, visiting with friends, sharing a birthday dinner with my brother in Boston and taking in a hockey game. Somehow, we managed to find time to start planning our wedding. We spent almost a whole day looking at venues, thinking about a guest list, talking to a photographer and wondering whether or not the Supreme Court of the United States would overturn Section 3 of the Defense of Marriage Act.  Not your typical wedding planning conversation, I'm sure.  But this morning, I was reminded of this law that would prevent our Maine marriage from being recognized federally as I dropped Trish off at the airport so she could return home to Toronto, Ontario. A Canadian citizen by birth, Trish would like to immigrate to the United States to live, work and start a family with me, her American partner. Because of the Defense of Marriage Act, I cannot sponsor Trish for spousal immigration, even though we could legally marry here in Maine. Actually, if we were to marry here or in Canada, where same-sex marriage has been legal since 2004, we might be prevented from traveling back and forth to see one another. Though we want to set a date and take our vows, we wait instead, not wanting to eliminate the few long weekends we currently get to spend together as a "normal" couple - grocery shopping, doing laundry and watching the morning news.  That wait is almost over, however, as the Supreme Court will hear Windsor v The United States tomorrow. The case, brought forward by the ACLU, could determine that Section 3 of the Defense of Marriage Act is unconstitutional. Trish and I are hopeful for ourselves, for Edie Windsor, for the 30,000 same-sex bi-national couples in our situation and the hundreds of thousands of same-sex couples who simply want federal recognition of their state based legal marriages.  It might be until June before the highest court in our land makes a final ruling, but anyone in the wedding industry knows that June is only the start of Maine's biggest season for weddings. I hope to marry Trish sooner, rather than later, so we can begin our lives together without a two hour flight or an outdated law separating us.  Check back in with us for updates along the way - we're so proud of our national LGBT rights project and all of their good work. This article is a great read for some history of how we got to where we are today, and for how we hope to continue to move forward after tomorrow. 

Remember the song "Walk Like An Egyptian" by the Bangles?  It topped the chart for four weeks back in 1986.  That's the last time our nation's electronic privacy laws were updated when the Electronic Communications Privacy Act was signed into law by then President Ronald Reagan.  In 1986, the cell phones that were available were far too small to fit in one's pocket.  Perhaps no one envisioned then that the cell phone itself and other electronic devices would become essentially miniature tracking units that most of us carry around with us everywhere we go. The ACLU is working nationwide to change our laws to reflect the extraordinary new surveillance capabilities of emerging technologies.  Last week, the ACLU of Maine testified in support of a bill, LD 415, that would put in place warrant requirements for the use of cell phone tracking by law enforcement.  Seems simple right?  After all, the Fourth Amendment to the Constitution states plainly: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The United States Supreme Court ruled in the case of United States v. Jones (2012) that law enforcement need a warrant to place a GPS tracking device on one's vehicle. So what about the GPS tracking device in your pocket?  Law enforcement and the Maine Attorney General's office think a warrant is not necessary; they testified last week in opposition to the bill. It's not surprising that law enforcement want to be able to engage in cell phone tracking without having to go before a judge to obtain a warrant.  As a technology expert testified to the Maine legislature's Judiciary Committee last week, the information that law enforcement can obtain from the cell phone companies about an individual's real-time or historic movements is extraordinarily precise.  As a New York Times article last summer noted, "That's Not My Phone, It's My Tracker."  Your cell phone -- smart or not -- pings on the nearest cell towers every seven seconds.  Law enforcement can compile a map of your longitudinal and latitudinal coordinates that identifies everywhere you go in a day from the doctor's office to church to the home of a friend or to the peace rally.  Cell phone tracking technology allows for remote shadowing of almost anyone all from the comfort of a police station. The Maine State Legislature has a choice.  They can pass LD 415 and put in place warrant requirements for cell phone tracking.  Or they can defer to law enforcement and an outdated law that passed when "Walk Like an Egyptian" was new.  You can help your legislators make the right decision by contacting them today and urging support of LD 415.

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. Government Transparency: Today, the ACLU and others told the Maine Legislature’s Transportation Committee that the public has a right to know about public-private transportation projects. Currently, information about public-private partnership projects are kept secret. A proposed law would change that. Read more here.   March Anti-Choice Madness: Mother Jones had a bracket you probably won't see around the office: An anti-choice March Madness bracket. Underdog North Dakota worked hard to become this year’s anti-choice champions. One bill banned abortions as early as 6 weeks, before many women would know that they’re pregnant. Click here to see the Anti-Choice March Madness bracket.  Click here to read the USA Today story. Same-sex marriage: Nationwide support for same-sex marriage jumped to an all-time high of 58%, according to a new Washington Post-ABC News poll. And next week, the Supreme Court will hear two cases on marriage equality. One of those is Edie Windsor’s challenge to DOMA - click here to hear the story by Nina Totenberg. Some think the marriage cases could define this Supreme Court’s legacy. GPS Location Tracking Bill: Yesterday, the Maine Legislature’s Judiciary Committee heard testimony on a bill that would require law enforcement to obtain a warrant before getting access to an individual’s present or historical location information. Said Shenna Bellows, “It’s no longer acceptable to say 'if you want to protect your privacy, don’t use the technology.' Cell phones and GPS devices are unavoidable necessities of modern life for most people, and using them should not make us subject to unchecked monitoring by the police.” Read more about that here.

Today was my FAVORITE day of the session, every session. Today was Girls Day at the State House, an annual event sponsored by our friends at Maine Women's Lobby.  100 eighth grade girls come to Augusta from all over the state. They learn about the legislative process, participate in a mock public hearing and stage a press conference. Every year, I am amazed by how smart, opinioned and articulate the girls are. It gives me great hope for our future as a state. These young women might consider running for office some day and it all started today! Interestingly enough, the bill debated in a mock public hearing and press conference was LD 699, legislation that would allow single sex education in Maine. The ACLU of Maine was opposed to this legislation in its real public hearing last week before the Education Committee - although we remained neutral today.  The girls in my mock public hearing and press conference unanimously voted against the bill. They stated lots of reasons for their opinions - separate but equal is not equal, girls and boys deserve the same education and how important it is for the genders to be socialized together. A couple of the girls even brought up how this could negatively impact transgender and gay or lesbian students in our schools. On a break, I shared with Shenna that it's a different world than when I was in eighth grade!  All in all, an amazing day. Thank you to all the girls who make my year every session. You are shinning stars.