Malcolm X to Barack Obama: The Supreme Court Needs Someone Like Me

Rebecca Sive

Please Mr. President, no "unobjectionable" appointment. Take a man or woman -- lesbian, gay, or otherwise -- who stands for something as our next Supreme Court Justice.

This article was originally published by Huffington Post.

Colleagues asked me last week, throughout that week of trouble, (and I’m not talking about trouble over volcanic ash over Europe): Where have you been lately? I’m reading my Huffington Post, and I don’t see you.

Well, mostly, I’ve been sitting in my office mulling over this matter of the president’s upcoming Supreme Court appointment. 

But, I did take a couple breaks: mid-week, I attended a gathering of progressive policy-wonks-in-the-know, (or so they say), where I heard talk of, not to say expressions of longing for, Franklin Roosevelt, in conversations about President Obama’s “Wall Street Reform” campaign.

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Later, in conversations with these same folks, I heard talk of LBJ, in the context of discussion about the week’s Tea Party gatherings, and the view of those folks that Organizing for America has failed to be an effective counterweight. 

But the main Chicago buzz-of-the-week was about the president’s prospective choice for Supreme Court Justice: Which one of those top-three frontrunner Chicagoans would the president pick?

Now, that’s a fun topic, great insider baseball talk for those still-in-Chicago friends and colleagues, who didn’t get picked to go to the White House, but who (also) know Judge Wood, or Judge Garland, or Solicitor General Kagan, or all three.

Heck, even at my family dinner table we talked about this with some insider knowledge and perspective: Judge Wood taught my husband at the University of Chicago Law School, and Solicitor General Kagan was a member of the, get-this, “Federal Courts Committee,” of the Chicago Council of Lawyers, when my husband was the Council’s President.

And, I spent some real-time recruiting big-time political donors to pay for the lawyers, in the RICO case about the rights of abortion clinic protestors, the case now causing Judge Wood so much grief.

For me, this gossipy fun ended Friday morning when the proverbial “…. hit the fan.” That’s when the Washington Post published a story in which:

…[A]n administration official, who asked not be identified discussing personal matters, said (Elena Kagan) is not a lesbian.

Yup, read that one again: “…[A]n administration official, who asked not be identified discussing personal matters, said (Elena Kagan) is not a lesbian.” 

The minute I read this, being the political junkie I am, my mind jumped to that all-time Richard Nixon favorite, “I am not a crook.” I guess it was just the way the sentence read. 

But, then, I got serious ’cause these kinds of political circumstances are no time for fooling around. In fact, these kinds of circumstances are Machiavelli time: No one else will do when you’re trying to parse-out seemingly arcane political moves about deadly serious political topics.

Talk about a process story; talk about a process story that matters. And boy, (or girl, in this case), does this one (matter). Machiavelli wins, hands-down, when that happens (to a process story).

Did the White House throw Kagan over the bus because, notwithstanding the pundits’ all week long take, the president isn’t seriously considering Ms. Kagan for the Supreme Court? To add insult to injury, did the White House throw Kagan over the bus in the most cowardly way possible — via an anonymous White House source talking about her presumptive sex life?

Certainly, the timing of the White House denial about Kagan’s supposed sexual preference is suspect, suggestive of Machiavelli-style manipulation of public opinion.

The denial happened on the same day the president issued his directive to the Secretary of Health and Human Services, (by long-distance e-mail from Miami), mandating hospitals to allow visits by partners of gay patients.

Of course, the alternative-take here is that this incident was just another “bone-headed” move (some of you may remember that one). 

The boneheaded move goes something like this, in the Elena Kagan as Supreme Court Justice nominee context: We didn’t mean to suggest that being a lesbian is like having some dread and mortal disease; we were just innocently inartful. But, in my experience of 26 years and counting, David Axelrod just isn’t boneheaded.

Fact is, talking about people’s supposed sex-lives, especially people who might be Supreme Court Justices, is a killer move, a truly Machiavellian one.

Phew, it’s Monday, and that news cycle is past. And the president didn’t have to traipse off to Poland ’cause of the danger of that danged volcanic ash. 

Actually, it’s too bad: Did you know that Chicago is the second largest Polish city in the world?

So, here’s the question: What philosopher could the president usefully read today, at the beginning of a new week, as he thinks about his Supreme Court Justice choice and his next news cycle?

Well, no need for Machiavelli right this minute, so I recommend Malcolm X. Malcolm X, who famously said: “A man who stands for nothing will fall for anything.”

Prior to putting pen to paper, I spent a few minutes looking around the web, to see what’s already out there in the blogosphere, besides the coverage of the Elena Kagan hullabaloo, on this matter of the president’s Supreme Court pick. 

Yes, there are some new Chicago names on the supposed list of Supreme Court possibilities.

But, here is my most astonishing find: Slate columnist, famous and admired legal writer, and up-till-now unabashed Barack Obama partisan, Emily Bazelon, wrote a piece last Tuesday, expressing her concern about the choice the president might make for our next Supreme Court Justice. 

Here’s Bazelon:

The President doesn’t want a fight. The Republicans don’t really, either. That about sums up the chatter about the confirmation process…It all points to the nomination of either the unobjectionable Judge Merrick Garland of the D.C. Circuit Court of Appeals or Solicitor General Elena Kagan, shortlisters who have hung out with Democrats their whole professional lives without marking themselves unmistakably as liberals.

Oops, that was Tuesday. Forgot that part about Elena Kagan’s presumptive sex life, and the danger it poses to the rest of us. How fast the worm turns: You better not (even) be thought to be a lesbian, because, if you are, you sure aren’t “unobjectionable” anymore; that much was made clear by the White House by Thursday.

Ironic in light of Thursday’s declaration about the Solicitor General’s supposed sex life, Bazelon’s main agenda in her Tuesday Slate piece was to demonstrate that Judge Wood, she of the RICO cum abortion case, might be almost as “unobjectionable” as Kagan. 

But, here’s the “buried lead” in Bazelon’s piece: “But before the left obediently backs a Kagan or Garland nomination….”

Bazelon’s shades of Malcolm X: Bazelon actually suggesting that we, the progressives who elected Barack Obama president, not “…obediently back…an unobjectionable pick;” that we support someone who stands for something. 

Shades of Barack Obama in a 2007 incarnation:

We need somebody who’s got the heart to recognize, the empathy to recognize what it’s like to be a young teenage mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.

But, apparently not “…the heart to recognize what it’s like…” to be (?) gay.

Now, let me be clear: I’ve got no brief for Solicitor General Kagan, nor, unlike Emily Bazelon, for Judge Wood, and, for sure, not for Judge Garland, yet another among the hundreds of white guys who could be Supreme Court Justices, who studied hard, did the right thing, never even murmured something inopportune, and, so, made good.

But, I do have a brief for those of us who took-to-heart those words of our president, for those of us who took heart when then Senator Obama fought President Bush’s Supreme Court Justice pick, Judge Samuel Alito, a man who, notwithstanding his modest upbringing, doesn’t, apparently, understand “…what it’s like to be poor.”

Mr. President: How ’bout that empathy? If not now, when? 

Mr. President: Isn’t it time to appoint the counter point to Justice Thomas? Isn’t it time to appoint this generation’s Justice Stevens? Isn’t it time to appoint this generation’s Thurgood Marshall, or William O. Douglas, or Ruth Bader Ginsburg, or Earl Warren, or Lewis Brandeis?

Mr. President: Isn’t it time to appoint someone who has stood for something, to appoint someone who has lived and advocated for change we can believe in?

Mr. President: Here’s another short list that might help you hone your thinking, (as, Politico reports ), you’ll be doing for the next few weeks).

This list describes what’s on the current Supreme Court docket. I’ve picked just a few of my faves: “habeas corpus,” “Miranda Rights,” “sentencing reform,” “speedy trial,” “gender discrimination,”” separation of powers,” First Amendment,” “unlawful detention,” and “employment discrimination.” 

Well, that list about covers the issues where one’s real-life experience, and understanding of how Court decisions affect it, as well as one’s knowledge of the Constitution, matter, all qualities you, Mr. President, have indicated are important to you for your next Supreme Court Justice pick.

Mr. President: All of us Americans learned many important lessons in the fight for your healthcare reform bill.

But, for the rest of us, the most important lessons were the ones you learned.

To me, the most important of those was Malcolm’s: “A man who stands for nothing will fall for anything.”

Mr. President: In that fight over healthcare, when you stood for something, and fought for it, you won. 

Mr. President: In that fight for healthcare, when you stood for the people, and not for the (healthcare) plutocrats, you won.

Mr. President: In that fight for healthcare, when you stood for “ordinary Americans,” the Americans who most need Supreme Court Justices with “heart,” when you stood for them, you won.

So, please, please Mr. President, no “unobjectionable” appointment. Please, please, Mr. President, take Malcolm’s lesson, along with that lesson from the health care fight, to heart. Take a man or woman — lesbian, gay, or otherwise — who stands for something as our next Supreme Court Justice.

Analysis Human Rights

From Protected Class to High-Priority Target: How the ‘System Is Rigged’ Against Unaccompanied Migrant Children

Tina Vasquez

Vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation.

This is the first article in Rewire’s two-part series about the U.S. immigration system’s effects on unaccompanied children.

Earlier this month, three North Carolina high school students were released from a Lumpkin, Georgia, detention center after spending more than six months awaiting what seemed like their inevitable fate: deportation back to conditions in Central America that threatened their lives.

Wildin David Guillen Acosta, Josue Alexander Soriano Cortez, and Yefri Sorto-Hernandez were released on bail in the span of one week, thanks to an overwhelming community effort involving pro bono attorneys and bond money. However, not everyone targeted under the same government operation has been reprieved. For example, by the time reports emerged that Immigration and Customs Enforcement (ICE) had detained Acosta on his way to school in Durham, North Carolina, the government agency had already quietly deported four other young people from the state, including a teenage girl from Guatemala who attended the same school.

Activated in January, that program—Operation Border Guardian—continues to affect the lives of hundreds of Central American migrants over the age of 18 who came to the United States as unaccompanied children after January 2014. Advocates believe many of those arrested under the operation are still in ICE custody.

Department of Homeland Security (DHS) Jeh Johnson has said that the goal of Operation Border Guardian is to send a message to those in Central America considering seeking asylum in the United States. But it’s not working, as Border Patrol statistics have shown. Furthermore, vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation. These youth arrived at the border in hopes of qualifying for asylum, but were unable to succeed in an immigration system that seems rigged against them.

“The laws are really complicated and [young people] don’t have the community support to navigate this really hostile, complex system. That infrastructure isn’t there and unless we support asylum seekers and other immigrants in this part of the country, we’ll continue to see asylum seekers and former unaccompanied minors receive their deportation orders,” said Julie Mao, the enforcement fellow at the National Immigration Project of the National Lawyers Guild.

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“A Grossly Misnamed” Operation

In January, ICE conducted a series of raids that spanned three southern states—Georgia, North Carolina, and Texas—targeting Central American asylum seekers. The raids occurred under the orders of Johnson, who has taken a hardline stance against the more than 100,000 families who have sought asylum in the United States. These families fled deadly gang violence in El Salvador, Honduras, and Guatemala in recent years. In El Salvador, in particular, over 400 children were murdered by gang members and police officers during the first three months of 2016, doubling the country’s homicide rate, which was already among the highest in the world.

ICE picked up some 121 people in the early January raids, primarily women and their young children. Advocates argue many of those arrested were detained unlawfully, because as people who experienced severe trauma and exhibited symptoms of post-traumatic stress disorder, generalized anxiety, and depression, they were disabled as defined under the Rehabilitation Act of 1973, and ICE did not provide reasonable accommodations to ensure disabled people were not denied meaningful access to benefits or services.

Just a few weeks later, on January 23, ICE expanded the raids’ focus to include teenagers under Operation Border Guardian, which advocates said represented a “new low.”

The media, too, has also criticized DHS for its seemingly senseless targeting of a population that normally would be considered refugees. The New York Times called Operation Border Guardian “a grossly misnamed immigration-enforcement surge that went after people this country did not need to guard against.”

In response to questions about its prioritization of former unaccompanied minors, an ICE spokesperson told Rewire in an emailed statement: “As the secretary has stated repeatedly, our borders are not open to illegal migration. If someone was apprehended at the border, has been ordered removed by an immigration court, has no pending appeal, and does not qualify for asylum or other relief from removal under our laws, he or she must be sent home. We must and we will enforce the law in accordance with our enforcement priorities.”

DHS reports that 336 undocumented Central American youth have been detained in the operation. It’s not clear how many of these youth have already been deported or remain in ICE custody, as the spokesperson did not respond to that question by press time.

Acosta, Cortez, Sorto-Hernandez, and three other North Carolina teenagersSantos Geovany Padilla-Guzman, Bilmer Araeli Pujoy Juarez, Pedro Arturo Salmeron—have become known as the NC6 and the face of Operation Border Guardian, a designation they likely would have not signed up for.

Advocates estimate that thousands of deportations of low-priority migrants—those without a criminal history—occur each week. What newly arrived Central American asylum seekers like Acosta could not have known was that the federal government had been laying the groundwork for their deportations for years.

Asylum Seekers Become “High-Priority Cases”

In August 2011, the Obama administration announced it would begin reviewing immigration cases individually, allowing ICE to focus its resources on “high-priority cases.” The assumption was that those who pose a threat to public safety, for example, would constitute the administration’s highest priority, not asylum-seeking high school students.

But there was an indication from DHS that asylum-seeking students would eventually be targeted and considered high-priority. After Obama’s announcement, ICE released a statement outlining who would constitute its “highest priorities,” saying, “Specifically individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators and recent border entrants.”

In the years since, President Obama has repeatedly said “recent border crossers” are among the nation’s “highest priorities” for removal—on par with national security threats. Those targeted would be migrants with final orders of removal who, according to the administration, had received their day in court and had no more legal avenues left to seek protection. But, as the American Civil Liberties Union (ACLU) reported, “recent border entrant” is a murky topic, and it doesn’t appear as if all cases are being reviewed individually as President Obama said they would.

“Recent border entrant” can apply to someone who has been living in the United States for three years, and a border removal applies “whenever ICE deports an individual within three years of entry—regardless of whether the initial entry was authorized—or whenever an individual is apprehended by Customs and Border Protection (CBP),” explained Thomas Homan, the head of ICE’s removal operations in a 2013 hearing with Congress, the ACLU reported.

Chris Rickerd, policy counsel at the American Civil Liberties Union’s Washington Legislative Office, added that “[b]ecause CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many ‘border removals’ are never fully assessed to determine whether they have a legal right to stay.”

Over the years, DHS has only ramped up the department’s efforts to deport newly arrived immigrants, mostly from Central America. As the Los Angeles Times reported, these deportations are “an attempt by U.S. immigration officials to send a message of deterrence to Central America and avoid a repeat of the 2014 crisis when tens of thousands of children from Honduras, El Salvador and Guatemala arrived at the U.S. border.”

This is something Mao takes great issue with.

“These raids that we keep seeing are being done in order to deter another wave of children from seeking asylum—and that is not a permissible reason,” Mao said. “You deport people based on legality, not as a way of scaring others. Our country, in this political moment, is terrorizing young asylum seekers as a way of deterring others from presenting themselves at the border, and it’s pretty egregious.”

There is a direct correlation between surges of violence in the Northern Triangle—El Salvador, Guatemala, and Honduras—and an uptick in the number of asylum seekers arriving in the United States. El Salvador, known as the murder capital of the word, recently saw an explosion of gang violence. Combine that with the possible re-emergence of so-called death squads and it’s clear why the number of Salvadoran family units apprehended on the southern border increased by 96 percent from 2015 to 2016, as Fusion reported.

Much like Mao, Elisa Benitez, co-founder of the immigrants rights’ organization Alerta Migratoria NC, believes undocumented youth are being targeted needlessly.

“They should be [considered] low-priority just because they’re kids, but immigration is classifying them at a very high level, meaning ICE is operating like this is a population that needs to be arrested ASAP,” Benitez said.

The Plight of Unaccompanied Children

Each member of the NC6 arrived in the United States as an unaccompanied child fleeing violence in their countries of origin. Acosta, for example, was threatened by gangs in his native Honduras and feared for his life. These young people should qualify as refugees based on those circumstances under international law. In the United States, after they present themselves at the border, they have to prove to an immigration judge they have a valid asylum claim—something advocates say is nearly impossible for a child to do with no understanding of the immigration system and, often, with no access to legal counsel—or they face deportation.

Unaccompanied children, if not immediately deported, have certain protections once in the United States. For example, they cannot be placed into expedited removal proceedings. According to the American Immigration Council, “they are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours.”

While their court proceedings move forward, HHS’s Office of Refugee Resettlement manages the care of the children until they can ideally be released to their parents already based in the country. Sometimes, however, they are placed with distant relatives or U.S. sponsors. Because HHS has lowered its safety standards regarding placement, children have been subjected to sexual abuse, labor trafficking, and severe physical abuse and neglect, ThinkProgress has reported.

If while in the care of their family or a sponsor they miss a court date, detainment or deportation can be triggered once they turn 18 and no longer qualify for protections afforded to unaccompanied children. 

This is what happened to Acosta, who was placed with his mother in Durham when he arrived in the United States. ICE contends that Acosta was not targeted unfairly; rather, his missed court appearance triggered his order for removal.

Acosta’s mother told local media that after attending his first court date, Acosta “skipped subsequent ones on the advice of an attorney who told him he didn’t stand a chance.”

“That’s not true, but it’s what they were told,” Benitez said. “So, this idea that all of these kids were given their day in court is false. One kid [we work with] was even told not to sign up for school because ‘there was no point,’ it would just get him deported.”

Benitez told Rewire the reasons why these young people are being targeted and given their final orders of removal need to be re-examined.

Sixty percent of youth from Central America do not ever have access to legal representation throughout the course of their case—from the time they arrive in the United States and are designated as unaccompanied children to the time they turn 18 and are classified as asylum seekers. According to the ACLU, 44 percent of the 23,000 unaccompanied children who were required to attend immigration court this year had no lawyer, and 86 percent of those children were deported.

Immigration attorneys and advocates say that having a lawyer is absolutely necessary if a migrant is to have any chance of winning an asylum claim.

Mao told Rewire that in the Southeast where Acosta and the other members of the NC6 are from, there is a pipeline of youth who arrived in the United States as unaccompanied children who are simply “giving up” on their valid asylum claims because navigating the immigration system is simply too hard.

“They feel the system is rigged, and it is rigged,” Mao said.

Mao has been providing “technical assistance” for Acosta and other members of the NC6. Her organization doesn’t represent individuals in court, she said, but the services it provides are necessary because immigration is such a unique area of law and there are very few attorneys who know how to represent individuals who are detained and who have been designated unaccompanied minors. Those services include providing support, referrals, and technical assistance to advocates, community organizations, and families on deportation defense and custody issues.

Fighting for Asylum From Detention

Once arrested by ICE, there is no telling if someone will linger in detention for months or swiftly be deported. What is known is that if a migrant is taken by ICE in North Carolina, somewhere along the way, they will be transferred to Lumpkin, Georgia’s Stewart Detention Center. As a local paper reported, Stewart is “the last stop before they send you back to whatever country you came from.”

Stewart is the largest detention center in the country, capable of holding 2,000 migrants at any time—it’s also been the subject of numerous investigations because of reports of abuse and inadequate medical care. The detention center is run by Corrections Corporation of America, the country’s largest private prison provider and one that has become synonymous with maintaining inhumane conditions inside of its detention centers. According to a report from the National Immigrant Justice Center, Stewart’s remote location—over two hours away from Atlanta—hinders the facility from attracting and retaining adequate medical staff, while also creating barriers to visitation from attorneys and family members.

There’s also the matter of Georgia being notoriously tough on asylum seekers, even being called the “worst” place to be an undocumented immigrant. The Huffington Post reported that “Atlanta immigration judges have been accused of bullying children, badgering domestic violence victims and setting standards for relief and asylum that lawyers say are next to impossible to meet.” Even more disconcerting, according to a project by Migrahack, which pairs immigration reporters and hackers together, having an attorney in Georgia had almost no effect on whether or not a person won their asylum case, with state courts denying up to 98 percent of asylum requests. 

Acosta, Cortez, and Sorto-Hernandez spent over six months in Stewart Detention Center before they were released on baila “miracle” according to some accounts, given the fact that only about 5 percent of those detained in Stewart are released on bond.

In the weeks after ICE transferred Acosta to Stewart, there were multiple times Acosta was on the verge of deportation. ICE repeatedly denied Acosta was in danger, but advocates say they had little reason to believe the agency. Previous cases have made them wary of such claims.

Advocates believe that three of the North Carolina teens who were deported earlier this year before Acosta’s case made headlines were kept in detention for months with the goal of wearing them down so that they would sign their own deportation orders despite having valid asylum claims.

“They were tired. They couldn’t handle being in detention. They broke down and as much as they feared being returned to their home countries, they just couldn’t handle being there [in detention] anymore. They’d already been there for weeks,” Benitez said.

While ICE claims the average stay of a migrant in Stewart Detention Center is 30 days, the detention center is notorious for excessively long detainments. Acosta’s own bunkmate had been there over a year, according to Indy Week reporter David Hudnall.

As Hudnall reported, there is a massive backlog of immigration cases in the system—474,000 nationally and over 5,000 in North Carolina.

Mao told Rewire that the amount of time the remaining members of the NC6 will spend in detention varies because of different legal processes, but that it’s not unusual for young people with very strong asylum cases to sign their rights away because they can’t sustain the conditions inside detention.

Pedro Arturo Salmeron, another NC6 member, is still in detention. He was almost deported, but Mao told Rewire her organization was able to support a pro bono attorney in appealing to the Board of Immigration Appeals (BIA) to stop proceedings.

Japeth Matemu, an immigration attorney, recently told Indy Week’s David Hudnall that “the BIA will tell you that it can’t modify the immigration judge’s ruling unless it’s an egregious or obvious miscarriage of justice. You basically have to prove the judge is off his rocker.”

It could take another four months in detention to appeal Salmeron’s case because ICE continues to refuse to release him, according to the legal fellow.

“That’s a low estimate. It could be another year in detention before there is any movement in his case. We as an organization feel that is egregious to detain someone while their case is pending,” Mao said. “We have to keep in mind that these are kids, and some of these kids can’t survive the conditions of adult prison.”

Detention centers operate as prisons do, with those detained being placed in handcuffs and shackles, being stripped of their personal belongings, with no ability to move around freely. One of Acosta’s teachers told Rewire he wasn’t even able to receive his homework in detention.

Many of those in detention centers have experienced trauma. Multiple studies confirm that “detention has a profoundly negative impact on young people’s mental and physical well-being” and in the particular case of asylum seekers, detention may exacerbate their trauma and symptoms of post-traumatic stress disorder. 

“People are so traumatized by the raids, and then you add detention on top of that. Some of these kids cannot psychologically and physically deal with the conditions in detention, so they waive their rights,” Mao said.

In March, Salmeron and fellow NC6 member Yefri Sorto-Hernandez received stays of deportation, meaning they would not face immediate deportation. ICE says a stay is like a “legal pause.” During the pause, immigration officials decide if evidence in the case will be reconsidered for asylum. Sorto-Hernandez was released five months later.

Benitez said that previously when she organized around detention, a stay of deportation meant the person would get released from detention, but ICE’s decision to detain some of the NC6 indefinitely until their cases are heard illustrates how “weirdly severe” the agency is being toward this particular population. Mao fears this is a tactic being used by ICE to break down young people in detention.

“ICE knows it will take months, and frankly up to a year, for some of these motions to go through the court system, but the agency is still refusing to release individuals. I can’t help but think it’s with the intention that these kids will give up their claims while suffering in detention,” Mao said.

“I think we really have to question that, why keep these young people locked up when they can be with their communities, with their families, going to school? ICE can release these kids now, but for showmanship, ICE is refusing to let them go. Is this who we want to be, is this the message we want to send the world?” she asked.

In the seven months since the announcement of Operation Border Guardian, DHS has remained quiet about whether or not there will be more raids on young Central American asylum seekers. As a new school year approaches, advocates fear that even more students will be receiving their orders for removal, and unlike the NC6, they may not have a community to rally around them, putting them at risk of quietly being deported and not heard from again.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

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