The Senate Judiciary Committee unanimously endorsed a compromise to decrease the federal sentencing disparity for possession of crack versus powder cocaine today. Considering Sen. Dick Durbin's bill to eliminate the 100-to-1 sentencing ratio, Democrats acquiesced to an amendment proposed by ranking Republican Sen. Jeff Sessions (right), which would reduce the disparity to a 20-to-1 ratio. By a vote of 19-0, the committee reported a bill bearing the reduced disparity to the Senate floor.

The virtues of ending the sentencing disparity were laid out by Adam Serwer, in The American Prospect this morning: 

More than 20 years since the passage of the law [responsible for the sentencing disparity], the arbitrarily draconian penalties for crack cocaine have contributed to the increasing racial disparities in the U.S. prison system and helped swell the number of those behind bars to fully more than 1 percent of the entire U.S. population.

The sheer number of people behind bars isn't just busting state budgets; it's helped destroy families and neighborhoods with not much discernible effect on the drug trade.

In "The New Jim Crow," Professor Michelle Alexander, of Ohio State University's law school, cites the drug war as a key cause for America's relatively high rate of incarceration. Writing for ACS Book Talk, Alexander argued that "mass incarceration has emerged as a stunningly comprehensive and well-disguised system of racial control that functions in a manner strikingly similar to Jim Crow." As reported by Serwer, reflecting on today's Judiciary Committee activity, "practically everyone in the committee acknowledged [that the sentencing disparity] disproportionately affects black Americans." 

Reactions to the committee's compromise were mixed. 

"I am not yet prepared to count any sentencing reform chickens," writes Ohio State University law Professor Doug Berman at his Sentencing Law and Policy blog. "But [a] unanimous vote suggests that lots of important folks have already bought into this particular solution. Thus, I think there is now a real chance that 2010 will finally be the year we get some change to the notorious 100:1 ratio in crack/powder mandatory minimums."

At TalkLeft, criminal defense attorney Jeralyn Merritt struck a less cheerful tone, noting that maintaining the disparity maintains its inherent inequality. "[W]hile the reduction [in the crack/powder disparity] is an improvement, the bill is a big disappointment," Merritt says.

Opportunity remains for the bill to further reduce or eliminate the sentencing disparity. A bill proposed in the House by Rep. Bobby Scott would remove the phrase "crack cocaine" from the federal criminal code, effectively eliminating the disparity. That bill, which passed the House Judiciary Committee last summer, was discussed by Congressman Scott at an ACS panel on criminal justice reform late last year. Scott discusses the current state of criminal justice in the United States in this YouTube clip, calling the status quo "an overwhelming international embarassment."

[Image via talkradionews.]

Property Outlaws

How Squatters, Pirates and Protesters Improve the Law of Ownership

By Sonia Katyal & Eduardo M. Peñalver

[Available Here]

Fifty years ago, on Monday, February 1, 1960, Ezell Blair, Jr., Franklin McCain, Joe McNeil, and David Richmond, all freshmen at the North Carolina Agricultural and Technical University, walked into the cafeteria at the Woolworth's Store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, although not required to do so by law, followed the local "custom" of refusing to allow its black patrons to eat at its lunch counter. Though they received no service, the four men sat quietly and without incident. When the store closed at 5:30, they left. The next morning, the four young men returned, along with sixteen other students from North Carolina A&T. By Thursday morning, the ranks of the sit-in participants had swelled to over sixty. Within a month, similar sit-in protests were occurring at department stores throughout the South. The fight for civil rights would never be the same.

What had been, as one contemporary put it, a civil rights movement dominated by lawyers working quietly in courtrooms had become a mass phenomenon. The student-led sit-ins thrust the civil rights question to the forefront of the 1960 presidential elections, and there is a direct line between the students' activism and the passage of Title II of the Civil Rights Act of 1964. That landmark law, which prohibits racial discrimination in most privately-owned businesses, radically transformed rights of private ownership in the United States and has become one of our most successful civil rights statutes.

It's easy, in hindsight, to downplay the controversy that surrounded the students' tactics, but, at the time, the Greensboro protesters were maligned from all sides as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered to be a trivial interest in access to lunch counter service. Such criticism did not come just from conservatives and segregationists. According to one account, when Thurgood Marshall heard about the sit-ins, he proclaimed that "he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going into their stores or lunch counters and refusing to leave when ordered to do so."

Whether the Greensboro students knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of Anglo-American property law. For as long as there has been private ownership, it seems, there have been groups who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes these movements have succeeded. More often, they have not. But the pervasive influence of these property outlaw tactics on the development of American property doctrine cannot be denied. In Property Outlaws, we explore the sit-in episode (along with scores of other examples of property lawbreaking) to try to extract broader lessons about the interaction between disobedience and ownership.

Today, forty years after the civil rights movement, we see this dialectic emerge time and time again in contemporary urban and rural environments, with respect to both tangible and intangible forms of property. The bike collective Critical Mass takes over the streets of metropolitan cities in order to reinvent the concept of public space; urban community gardeners take over vacant lots to beautify the city and create a sense of shared ecological responsibility; pirate microradio stations in the Bay Area and mashup artists interrupt everyday sonic worlds; cyberactivists like the Electronic Disturbance Theatre and others mount international electronic civil disobedience campaigns. The debates that frequently accompany these movements continue to unfold.

Drawing, in part upon the historical and contemporary context, our aim is to broaden the focus of property and intellectual property discussions beyond the common recognition of property's need for stability to include its need for dynamism, an ability to change and to fluctuate according to shifting norms, values, and social realities. We hope to rehabilitate, at least to a certain extent, the image of the intentional property outlaw, and to show how she has repeatedly played an integral role in producing our system of property and intellectual property. In doing so, we also hope to shed light on a complex and subtle tension: at the same time that property seems to be so stable and orderly, it also masks a latent instability that stems from the persistence of transgression. Far from universally undermining the value of property, however, this underlying instability is frequently constructive and indeed, necessary to prevent the entire edifice from becoming outdated.

The value of at least certain instances of disobedience is twofold. First, there may in certain situations be value in the outlaw's directly redistributive conduct. That is, there may be circumstances under which we assess that the lawbreaker's decision to take someone else's property, either for himself or to give to another, is itself valuable. We refer to this phenomenon as the lawbreaker's creation of "redistributive value." Second, in cases of persistent, widespread lawbreaking, citizen behavior may communicate useful information to property owners and to the state, indicating that some element of a property law, or some dimension of the owners' use of property, may be out of date or unjust in some respect. We refer to this signaling function provided by outlaw conduct as its "informational value." If property and intellectual property rights were perfectly enforced, either through draconian penalties or certain enforcement, each of these categories of potential value would be eliminated.

The implications of this insight differ somewhat for tangible and intellectual property. In the area of tangible property, our proposals are relatively modest, largely because the law of tangible property already contains within it a number of venerable doctrines that, in our view, acknowledge the value of a significant amount of lawbreaking. Doctrines such as adverse possession (often referred to as "squatters rights") and necessity (which permits people in emergency situations to take what they need in order to survive), provide mechanisms for nonconsensual transfers of property under certain constrained conditions. Although there have been some efforts in recent years to roll these doctrines back or limit their application, we favor preserving them and perhaps even expanding them in a number of respects. In the context of intellectual property, pervasive uncertainty as to the scope of the actual entitlement generates space for disobedience but also causes a great deal of productive behavior to labor under the threat of crippling statutory penalties.

Our aim, therefore, is to broaden the focus so that the discussion of disobedience is not just about property's need for stability, but also its need for dynamism, its ability to change and to fluctuate according to shifting norms, values, and social realities. In other words, we hope to rehabilitate, at least to a certain extent, the image of the property outlaw, and to show how she has repeatedly played an integral role in producing our system of property and intellectual property. Time and again, groups of people have intentionally violated property laws, and in a number of important cases, the law of property has responded by shifting to accommodate their demands, in the process bringing those groups back within the fold of the law-abiding community.

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The American legal market's contraction resulted in a dearth of legal jobs, and a flood of attorneys willing to fill them. But a new report brings to light the disproportionate impact that the financial crisis had on African-American and other minority attorneys.

"Overall, big firms shed 6 percent of their attorneys between 2008 and 2009 -- and, amid the bloodletting, lost 9 percent of their minority lawyers," reports Emily Barker at The American Lawyer. The periodical based its findings on survey responses from 191 large law firms, seeking employment data in both years, and just released "The Diversity Scorecard 2010," available here.

In sum, the survey found: [Brackets, link in original.]

The data shows that, while minority lawyers as a whole lost ground, not all groups were affected equally. In proportional terms, African-Americans lost the most: the percentage of all black lawyers fell by 13 percent (462 lawyers), with the number of black nonpartners sliding by a startling 16 percent. Translation: Almost one in six African-American nonpartners left the surveyed firms in the space of a year without being replaced [see "In Retreat"].

In raw numbers, Asian-Americans dropped the most, by 9 percent (556 lawyers). The number of Asian-American nonpartners dropped by 11 percent, while the number of partners rose by 6 percent. As for Hispanic lawyers, their numbers dropped by 9 percent overall (282 lawyers). Hispanic nonpartners fell by 13 percent; partners rose by 3 percent.

The declines in minority attorneys were not evenly spread across firms. About a third saw no decrease, while 31 firms saw decreases of 20 percent or more. The biggest decliners in percentage, including Fried, Frank, Harris, Shriver & Jacobson; Gibbons; Kilpatrick Stockton; and Milbank, lost more than a third of their minority attorneys. (Gibbons and Kilpatrick say they remain strongly committed to their diversity programs; Fried Frank did not respond to a request for comment.) While general head count also went down at almost all 31 of those firms, in every case it was outpaced by the percentage drop in minority lawyers.

It would seem logical that the losses in the minority lawyer population are linked to the widespread job cuts at large law firms in 2008 and 2009. But we can't draw that conclusion definitively without collecting a demographic breakdown of all of the attorneys fired for economic reasons -- a project beyond the scope of this survey. However, our data shows a strong correlation between firms that drastically cut overall head count and firms that saw significant losses of minority lawyers.

[Image via fxp.]

Rising Road

A True Tale of Love, Race and Religion in America

By Sharon Davies

[Available Here]

Rising Road is one of those books that happened by accident; a chance occurrence on the way to somewhere else.

After the outcome of the election in 2004, when the country was abuzz with reports of how the question of gay marriage drove President George W. Bush's supporters from their homes to the voting booths, I began to think about law and marriage, and the way of constitutional change.

It was a topic of great personal importance to me, law and marriage. Had my parents been swayed by the marriage laws that were still in place in various states at the time of my birth, I would never have been born. Neither would any of my five brothers or sisters. It was the era of the anti-miscegenation laws. The simple act of having us was a crime, a number of states declared, and they backed the ban up with the criminal sanction. Defiant mixed race couples could be jailed.

I was nearly seven-years-old by the time the U.S. Supreme Court finally got around to striking those laws down. Seems my siblings and I weren't crimes after all. It was the law that was wrong, the Court announced in Loving v. Virginia in 1967. The decision was unanimous. Even Justice Hugo Black agreed, though a son of the South, the region of the country most steadfastly devoted to the anti-miscegenation regime.

After the election in 2004, I wondered how constitutional change like that came about-how acts of intimacy, and marriage, and the wee beings that can result from them, could one day be outlawed, and another day not. I will write an article about that, I thought to myself, and set to work.

When doing the researching for that intended article, however, the unexpected happened. I tripped over a reference to a 1921 trial in Birmingham, Alabama. A murder trial, where the marriage of the daughter of a Methodist minister to a Catholic migrant from Puerto Rico, led the minister to kill the Catholic priest who took their vows. How horrible, I thought. I'll use it as an example in my article.

But when I actually found the transcript of that trial, the awful, revealing story underlying the minister's crime subsumed me-just as the crime had subsumed the nation back in 1921-and my plans changed. This is no law journal article, I thought to myself. This is a book. After three years of research and two more of writing, I delivered the manuscript for Rising Road to my editor at Oxford University Press.

The nonfiction book, written as a narrative, begins with the decision of Ruth Stephenson, age 18, to marry Pedro Gussman, a wallpaper hanger, against the wishes of her parents, Rev. Edwin R. and Mary Stephenson. Alabama law permitted the union, even if Ruth's parents objected; only marriages between whites and blacks were banned. So Ruth and Pedro had no trouble obtaining the marriage license they needed to be wed. But as the tale in Rising Road reveals, "unwritten laws" have been known to shadow those printed in a state's criminal code, and sometimes even outstrip them.

When Rev. Stephenson learned about his daughter's marriage, he shot and killed the priest who married them, Father James E. Coyle, the presiding pastor of St. Paul's Catholic Church. There never was a dispute about the identity of Fr. Coyle's killer-a number of witnesses heard the shots and saw Stephenson step down from the rectory porch where his victim lay bleeding, and Stephenson immediately surrendered and confessed-the only question was whether the minister would be punished for it.

In 1921, the question was more complicated than it should have been. Rev. Stephenson was a member of the resurrected Ku Klux Klan, sometimes known as the "second Klan," an organization that had successfully rebranded itself as a "patriotic" fraternity dedicated to defending the nation against the forces that threatened to engulf it: Blacks, Catholics, Jews and waves of other immigrants flooding into the country with only the slimmest desire to assimilate, Klansmen raged. The rallying cries worked; the Klan packed its rosters during this period with "the best men in town"-doctors, lawyers, judges, law enforcement officers, and men of the Protestant clergy like Stephenson.

After the shooting, the Klan circled the wagons around the jailed minister, holding drives across the state to raise funds for Stephenson's defense, and hiring a talented young lawyer to lead it, Hugo Black. I will not spoil the story for those who care to read the book. Suffice it to say that the pursuit of justice would not be easy, and the lawyer who would one day play a part in striking down the anti-miscegenation laws in 1967, would not hesitate to exploit the impulses that animated them in 1921 while defending the killer of an unarmed priest. It would take some time for Hugo Black, and the nation, to travel along that road to somewhere else.

Until voters, lawmakers or courts say otherwise, Maryland will recognize same-sex marriages performed in other states, Maryland Attorney General Douglas Gansler stated in a Feb. 23 opinion. Gansler (pictured) was asked last year by state Sen. Richard S. Madaleno Jr. whether the state would recognize gay marriages performed in other jurisdictions.

Gansler's 53-page opinion noted that same-sex marriages are valid in "four New England states and Iowa," and that the District of Columbia "has enacted a bill subject to congressional review, that would authorize same-sex marriage in that jurisdiction beginning in the spring of 2010," and that a "number of foreign countries have also authorized same-sex marriage." Although Maryland law states that only "a marriage between a man and a woman is valid in this State," Gansler noted that Maryland courts have held to "the general rule that a marriage valid where contracted or solemnized is valid everywhere, unless it is contrary to the public policy of the forum."

Gansler also ordered Maryland agencies start affording same-sex couples the same rights as heterosexual couples, The Washington Post reported. In a press statement Maryland Gov. Martin O'Malley said, "I am confident that the Attorney General and his office will provide all necessary advice to state agencies on how to comply with the law. I expect all state agencies to work with the Attorney General's office to ensure compliance with the law."

The attorney general's opinion sparked derision from religious groups in the state and socially conservative state lawmakers, such as Del. Donald H. Dwyer Jr., who said he would lodge "charges of impeachment" against Gansler.

Equality Maryland Executive Director Morgan Maneses-Sheets lauded the opinion, saying in press release, that it is "consistent with Maryland's public policy, which has steadily supported increasing legal protections for same-sex couples and their families. In recent years, the legislature has granted approximately 15 protections of legal marriages to same-gender couples in the areas for medical decision-making and inheritance."

Activists hope to once again make Nebraska the battleground over whether the Supreme Court should reaffirm its 1973 decision in Roe v. Wade, recognizing a woman's right to an abortion. Just introduced in Nebraska's unicameral legislature is a bill acknowledged by advocates on both sides of the issue to be unconstitutional under the Court's present jurisprudence.

From the Omaha World-Herald: [links added]

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure "partial-birth" abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

The law would ban abortions after 20 weeks, disregarding the question of viability, which occurs around the 24th week of pregnancy and was relied upon as a boundary for state regulation in the Supreme Court's 1992 Planned Parenthood v. Casey decision. In Casey, today's swing-vote Justice Anthony Kennedy co-wrote the majority opinion, joined by the liberal wing of the court. The Center for Reproductive Rights' Janet Crepps told the World Herald that this is reason for comfort to the pro-choice community, although Justice Kennedy joined the conservative wing of the Court in its two most recent decisions regarding reproductive rights.

At RHReality Check, Robin Marty sees the proposed legislation in Nebraska as part of a national push to set reproductive rights before the Roberts Court, which some observers see as marching American jurisprudence further to the right. Marty notes that legislation in Florida and Ohio is also pending which runs contrary to settled law on the issue.

[Image via Wolfgang Staudt.]

Virginia Gov. Robert McDonnell (R) has signed an executive order removing protection for lesbians and gay men against discrimination in state jobs. McDonnell's order was signed earlier this month, The Washington Post reports, and rescinds an order that former Gov. Tim Kaine (D) signed in 2006 that added language to the state policy specifically barring discrimination against employees based on their sexual orientation. 

Talking Points Memo reported that McDonnell's chief of staff claimed that the new order still bars "any and all discrimination." Kaine declined comment on the matter, but his spokesperson Hari Sevugan told TPM that the governor's new order "says a lot about the Republican party that they would anoint as their ‘rising star' someone who in 2010 is actually stripping away from Americans legal protections against discrimination."

While the setback for equal rights in this country sparked consternation among civil liberties groups, several nations in Africa are taking aggressively muscular efforts to snuff out any attempts to even jump-start a movement for gay rights. For example, in Uganda a law is being pushed that would order a life sentence or death for gay men and lesbians.

In another example, Malawi's government is drawing worldwide attention for recently imprisoning two men for publicly celebrating their engagement at a lodge in Blantyre, reported The New York Times. Days after the celebration the men were imprisoned on charges of "unnatural acts and gross indecency" and have remained in jail. Some Malawi media coverage of the arrest has heralded the same-sex couple's celebration as "the first recorded public activity for homosexuals in this country." The nation's minister of information and civic affairs maintained, "These immoral acts are not in our culture; they are coming from outside. Otherwise, why is there interest from around the world? Why is money being sent?"

Organized religion in Malawi is also helping to stoke animus towards lesbians and gay men. The newspaper quoted Rev. Zacc Kawalala, head of World Alive Ministry, as saying, "The West has its gay agenda. It wants to look at Africa and say, ‘If you don't accept homosexuality, you are primitive. But we're not as wicked as the West."

Some Latin American nations, however, are seeing progress on equal rights for gay men and lesbians.

Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom
is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes: 

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans. 

More recently, Klarman notes, the Court ruled that a disparate impact was insufficient to demonstrate a violation of the Equal Protection Clause; a majority applied strict scrutiny and struck down race-based affirmative action policies; rejected an equal protection challenge to the racially imbalanced application of the death penalty; and outlawed efforts to improve or preserve school desegregation.

"In sum, while the last forty years of conservative hegemony on the Court has yielded racially regressive results pretty much across the board, one should not absolve the larger society that the Court serves of responsibility for such outcomes," Klarman concludes. "The Supreme Court mirrors society at least as much as it shapes it. The conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence."

[Image via Nebraska Wesleyan University.]

Defense Secretary Robert Gates and Adm. Mike Mullen, the chairman of the Joint Chief of Staff, told the Senate Armed Services Committee that "Don't Ask, Don't Tell," the ban on openly gay service members, should be repealed.

"Last week, during the State of the Union address, the President announced that he will work with Congress this year to repeal the law known as ‘Don't Ask Don't Tell,'" Gates said in prepared testimony. "He subsequently directed the Department of Defense to begin preparations necessary for a repeal of the current law and policy.

"I fully support the President's decisions," Gates continued. "The question is not whether the military prepares to make this change, but how we best prepare for it. We have received our orders from the Commander in Chief and we are moving out accordingly. However, we also can only take this process so far as the ultimate decision rests with you, the Congress."

Adm. Mullen said, "No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens," The New York Times reported.

Mullen added that "allowing gays and lesbians to serve openly would be the right thing to do."

To prepare the armed forces for a possible repeal of the law, Gates said he appointed "a high-level working group within the department that will immediately begin review of the issues associated with properly implementing a repeal of the ‘Don't Ask, Don't Tell' policy. The mandate of this working group is to thoroughly, objectively and methodically examine all aspects of this question and produce its finding and recommendations in the form of an implementation plan by the end of this calendar year."

The Times reported that the working group would be led by Jeh C. Johnson, the Defense Department's general counsel, and a frequent ACS participant, and Gen. Carter Ham, commander of U.S. Army Europe.

While the military is preparing for a possible repeal of "Don't Ask, Don't Tell," Gates told senators that the Defense department would enforce it "in a more humane and fair manner." The Times reported yesterday that Defense Department officials indicated they would not "discharge service members whose sexual orientation is revealed by third parties ...."

An archived Webcast of today's hearing is available here.

In a press statement, Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, praised Gates for "supporting the President's view that DADT needs to go. It's a matter when and how, he said, not if. We also strongly applaud Chairman Mullen who unambiguously personally supported gays and lesbians serving openly. The top military brass of the United States just laid out a roadmap for full repeal."

For more on repealing "Don't Ask, Don't Tell," see video of a recent panel discussion hosted by ACS, in which Sarvis participated. 

[image via www.armybase.us]