News & Commentary

The movement to expose the inhumanity of solitary confinement is gaining momentum.In June 2015, U.S. Supreme Court Justice Anthony Kennedy beckoned for a case to examine the use of solitary confinement. In July 2015, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities. California settled a lawsuit in September 2015 brought by prisoners at Pelican Bay State Prison that will overhaul the use of solitary confinement. In that case, more than 500 prisoners had been held in solitary confinement for more than 10 years with 78 having been held for more than 20 years.In fall 2015, there was a breakthrough moment for the end-solitary movement when 15 heads of corrections agencies from around the U.S., as well as leading academic experts and advocates, released a set of recommendations to reform solitary confinement.In January 2016, President Obama banned solitary confinement of juveniles in federal prisons and announced sweeping reforms to reduce the use of the practice against adult prisoners in the system as well. The president also called on the nation to rethink solitary confinement as an affront to our common humanity.The turning point for reforming the use of solitary confinement in the past few years is obvious. Expert research conducted in a variety of scientific fields on the effects of the practice is overwhelmingly damning. The physical and psychological effects of isolating a person for 23 hours a day for lengthy periods of time, sometimes even decades, with little or no human interaction or sensory stimuli, literally drives people insane.Often, the damage is irreversible. Aside from the inhumanity of the practice, correctional officials are beginning to accept that solitary confinement costs taxpayers too much to maintain and actually harms public safety instead of protecting us. Prisoners too often are released back into our communities unprepared to re-enter community life. Sometimes they are released directly from solitary confinement where they experienced immense suffering, and the consequences can be shocking.The ACLU of Virginia has asked Governor McAuliffe to follow the President’s lead at the state level by 1) banning solitary confinement of juveniles in state and local facilities; and 2) developing and implementing effective strategies to reduce solitary confinement of adults in the Commonwealth’s state and local correctional facilities. We are still working to make that happen.Our work is part of a nationwide effort by the ACLU and its affiliates across the country, working together with other advocates, to conduct public education campaigns that uncover the ugly consequences of solitary confinement in prisons and dispel the myths behind its justification, advocate for changes to end its routine use and initiate litigation where education and advocacy is unsuccessful.In December 2015, the ACLU’s affiliate in New York (NYCLU) announced a groundbreaking, historic settlement with the New York Department of Corrections (NYDOC) that will overhaul and reduce the use solitary confinement in one of the country’s largest penal systems. The settlement comes as a result of NYCLU’s class-action lawsuit file in 2012, Peoples v. Fischer, and after years of negotiations with the state.The settlement reached by the NYCLU in New York, that was approved by a federal judge on March 31 sets a model for the nation. The settlement promises  to: 1) reduce the number of people in solitary; 2) reduce the time people spend in solitary; and 3) alter the conditions of solitary confinement by abolishing some of its most dehumanizing aspects and emphasizing rehabilitative features that will improve safety for those inside the prison and the public.NYDOC will implement a step-down program for prisoners for the first time that advocates hope will be much shorter in duration than other states’ programs. Further, getting out of solitary confinement will not be dependent on successful completion of the step-down program. The program simply requires that a prisoner put forth effort.The settlement also promises that prisoners who commit minor infractions will not be sent back to solitary confinement automatically. While the NYDOC settlement isn’t perfect, the result is that persons with serious mental illness will no longer be held in solitary confinement. A court will monitor implementation of the settlement that will result in millions of dollars of investment to achieve the promised reforms.We have a lot of work to do in Virginia to live up to the model set by New York. The actions we’ve asked the Governor to take would move us in the right direction but more must be done to reform use of solitary in Virginia’s adult and juvenile correctional facilities.Hidden away in the deep corner of Southwest Virginia is the supermax Red Onion State Prison (ROSP). ROSP is a long way from VDOC headquarters and its oversight in Richmond.The prison came under fire in 2012 for its use of solitary confinement and subsequently, officials put in place a “step-down” program in which prisoners in solitary can participate and behave their way out of solitary. The program sounds great in theory (and it received some positive press attention accordingly); however, many prisoners suffer from serious mental illnesses that prevent them from conforming their behavior to the standards set in the program.As for the rest of the prisoners, it takes an average of 18 months to work their way through the program, much longer than programs in other states. Also, a prisoner in Virginia only gets out of solitary confinement if he successfully completes the program. What qualifies as successful completion remains a mystery, and completion doesn’t prevent a prisoner from being sent back to solitary confinement.Since the Virginia step-down program was implemented at ROSP, few updates have been publically released. The information that has been released raises more question than it answers. For example, the Virginia Department of Corrections reported that the number of filed incident reports and grievance forms had been dramatically reduced. In fact, the ACLU of Virginia has received reports that incidents and grievances are not down because VDOC’s reform measures are working, but because of actions by correctional officers.We’ve been told that on-the-ground correctional officers won’t give prisoners the necessary forms and, at times, prisoners have suffered from physical acts of violence or the threat of violence if they want to report problems or attempt to address basic rights. This is just one of the alarming problems we’ve heard about at Red Onion State Prison.It is past time for VDOC to retain an independent expert to examine the effectiveness of its step-down program in light of the national recommendations made in the fall of 2015 and the terms of the New York settlement, and tell the people of Virginia what is really going on at Red Onion State Prison and other adult and juvenile facilities in the Commonwealth.At the very least, VDOC should reduce the length of time it takes to complete the step-down program at ROSP, and prisoners should not be sent back to solitary confinement automatically for minor infractions. Virginia prisoners suffering from serious mental illness should not be in solitary confinement at any correctional facility in Virginia– period.VDOC and ROSP must provide transparency and implement an effective plan that permanently moves away from this practice that makes a mockery of human rights. The effects of solitary confinement are destructive to the human body and mind – that is a universal truth.That truth alone should be enough to end the wholesale use of the practice and prohibit its routine use as cruel and unusual punishment under the Constitution. The Governor and VDOC should get serious about reforming solitary confinement before it’s too late.

If you have a tree air freshener – or anything else – hanging from the rear-view mirror of your car, police in Virginia can pull you over.For more than 25 years, Virginia law has prohibited drivers from hanging objects from the rear-view mirror “in such a manner as to obstruct the driver’s clear view of the highway.” Many law enforcement agencies ignore such a minor infraction. But some police officers have used this law as a means to stop drivers they want to investigate for other reasons.Virginia’s criminal defense lawyers have repeatedly challenged this police practice. Some have questioned whether an object hanging from the rear-view mirror provides police with enough of a reason to make a traffic stop – particularly when the officer cannot say whether the object actually obstructs the driver’s view.This week the Supreme Court of Virginia finally answered that question: yes, police can pull you over simply for having an object hanging from your rear-view mirror. It does not matter whether the object obstructs your view of the highway. Nor does it matter if the officer, after pulling you over, investigates whether the object obstructed your view. What matters is whether the dangling object “was sufficiently prominent to attract the officer’s attention during the brief moments that it passed through his field of view.”According to Virginia’s highest court, so long as the officer has a reasonable, articulable suspicion that a dangling object “could” obstruct the driver’s view of the highway, the traffic stop is legal.In the case decided by the Supreme Court of Virginia this week, Mason v. Commonwealth, an officer in Sussex County stopped Tony Jarrett on a highway in Waverly, Va. Jarrett was not speeding. The officer identified just one traffic infraction that caught his eye: the 3-inch by 5-inch parking pass that hung on Jarrett’s rear-view mirror.After the stop, the officer did not check to see whether the parking pass obstructed Jarrett’s view of the highway. In court, the officer testified that the pass “could” have obstructed Jarrett’s view.The traffic stop revealed that Loren Mason, a front-seat passenger in Jarrett’s car, was in possession of marijuana, ecstasy, cocaine and more than $3,000 in cash. Mason was convicted of three drug felonies and sentenced to a year and seven months in prison. He appealed to the Virginia Court of Appeals, which initially reversed his conviction based on the traffic stop. That court later reversed itself, 6–5. The Supreme Court of Virginia’s decision means Mason’s convictions will stand.Still have that air freshener, fuzzy dice or graduation tassel hanging from your rear-view mirror?

Note: The following was originally posted on the blog of the American Constitution Society on April 26, 2016.By Gail Deady The Secular Society Women’s Rights Legal FellowGavin Grimm is a junior in high school in Gloucester, Virginia. Gavin is a boy but, because he is also transgender, his school district prohibits him from using the boys’ restrooms. He is instead forced to use the girls’ restroom or single-user, gender-neutral restrooms. With the help of the ACLU of Virginia and the ACLU LGBT & AIDS Project, Gavin challenged this policy in federal court as discriminatory. In a landmark decision last week, the United States Court of Appeals for the Fourth Circuit agreed with him.Under Title IX of the Education Amendments of 1972, educational institutions receiving federal education funds are prohibited from discriminating against students on the basis of sex. There are some exceptions to that general prohibition, such as a regulation allowing schools to designate separate restrooms for male and female students.In April 2014, however, the Department of Education issued guidance stating that if schools treat male and female students differently, they must treat transgender students consistently with their gender identity.Gavin came out to his family as a transgender boy in the summer of 2014 and began his transition, which meant living all aspects of his life as a boy. That fall, Gavin enrolled in school as a male student with his new legal name: Gavin. Unsure of how his peers would react to his transition, Gavin initially asked to use the nurse’s restroom.At first, everything went well. School staff supported Gavin’s transition, and most of his peers accepted him as just another male student. When it became clear to Gavin that he could safely use the boys’ restrooms, he asked for and received school administrators’ permission to do so. Gavin used the boys’ restrooms without any problems for about seven weeks.Some parents nevertheless objected to the school’s decision to allow a transgender boy to use the same school restrooms as every other boy. At a November 2014 School Board meeting, adults spoke out against Gavin based on misinformation and unfounded fears about transgender people. Gavin also spoke at the meeting, saying he just wanted to use the restroom in peace.Despite warnings that the policy violated Title IX, the School Board voted in December 2014 to implement a policy requiring students to use restrooms consistent with their “biological gender” and directing students with “gender identity issues” to use single-stall, gender-neutral restrooms. The School Board claimed this policy was necessary to protect the privacy and safety of all students. But what it really did was stigmatize transgender students and imply they are unfit to use the same restrooms as their peers.With the help of the ACLU, Gavin challenged this policy as discriminatory on the basis of sex under Title IX and the Equal Protection Clause of the Fourteenth Amendment. He also filed for a preliminary injunction to use the boys’ restroom while litigation was pending. The United States filed a statement of interest supporting Gavin’s Title IX claim.In September 2015, the district court issued an opinion granting the School Board’s Motion to Dismiss Gavin’s Title IX claim and denying his request for a preliminary injunction. The court’s decision refused to give deference to the Department of Education’s interpretation of its regulation permitting schools to have sex-segregated restrooms. Further, it found that discriminating against a student because he is transgender did not constitute sex discrimination under Title IX.We appealed that decision to the United States Court of Appeals for the Fourth Circuit, and several groups filed amicus briefs supporting Gavin’s case. One brief, filed in support of Gavin on behalf of school administrators from across the country, provided strong evidence that the School Board’s fears – that allowing transgender students to use gender identity-appropriate restrooms in school would lead to coed bathrooms, violate students’ privacy or lead to male students pretending to be transgender to gain access to girls’ restrooms or locker rooms for nefarious purposes – had not materialized in other school districts with transgender-inclusive restroom and locker room policies.Last week, the Fourth Circuit agreed with Gavin. In a 2-1 decision, the panel held that schools that bar transgender students from using the restrooms matching their gender identity discriminate on the basis of sex in violation of Title IX. The court sent the case back to the trial judge for further proceedings on the preliminary injunction. On April 21, the School Board unanimously voted to seek en banc review.The Fourth Circuit’s ruling has widespread implications. It is the first federal appeals court to rule on the question of whether Title IX bars bathroom policies that discriminate against transgender students, and it backs up the federal Department of Education’s interpretation of Title IX. It also directly applies to North Carolina’s recently enacted law, HB2, which forces transgender students to use the wrong restroom at school. The ACLU of North Carolina was among several plaintiffs that filed a federal lawsuit earlier this month to overturn HB2 on constitutional grounds, and because it would force schools to violate Title IX. The ruling also sends a strong message to South Carolina, also within the Fourth Circuit, which is considering a similar law.Most importantly, the Fourth Circuit’s decision sends a strong message that forcing transgender people who are already at greatly increased risks of suicide, harassment, and violence to use the wrong restroom is sex discrimination and should not be tolerated. Neither Gavin, nor any other transgender student, should be humiliated by having his identity disrespected and undermined every time he has to use the restroom at school.

Note: The following was published in the Editorial section of the Roanoke Times on April 19, 2016.The current debate over the death penalty in Virginia reads like a dark, twisted version of the party game “Would You Rather?”When the House of Delegates and Senate convene Wednesday, they will consider amendments the governor has suggested to House Bill 815. That bill, as originally proposed by Del. Jackson Miller (R-Manassas) would have made Virginia one of only two states in the country to revert to using the electric chair automatically if for any reason it can’t carry out a scheduled execution by lethal injection. Right now, the electric chair can be used only if the prisoner requests it.Legislators have been told they have but two options regarding the future of capital punishment: let the Department of Corrections concoct secret execution drugs or stop killing monstrous criminals.To his credit, the Governor is against a return to the electric chair – a ghastly, antiquated tool of torture and death. The alternative he offered, secret acquisition and administration of secretly concocted drugs, however, is not the “reasonable” compromise he says it is and should be rejected.The problem is the drugs for lethal injection – which polls show the majority of Americans consider to be far more humane than the electric chair – are getting more and more difficult to acquire. Why? Because pharmaceutical companies that make them do not want them used in executions.Virginia was able to carry out its last execution in October only by buying drugs from Texas, which shielded the identity of its own source. The last of that batch in the state’s possession expired last week.The governor’s answer? Allow the state to contract with compounding pharmacies – which normally mix drugs to meet the needs of specific patients under prescription – to concoct new drugs in secret. Under the amendments offered to HB 815, neither the identity of the pharmacy nor specifics of the drugs themselves could be disclosed to the public via the Virginia Freedom of Information Act or even in a civil lawsuit.The ACLU of Virginia rejects this plan on its face, and not just because we support repeal of the death penalty. If the state is going to engage in the process of terminating someone’s life for any reason, no matter how reprehensible the crime that person has been convicted of committing, the public must have full knowledge and understanding of the process.Under the amendments to HB 815, neither the public, the press, nor the legislature – not even the person to be executed – would ever know what lethal drugs were used or who was responsible for making them.The process being urged on the legislature would put the Department of Corrections in the position of engaging in an unregulated, secret drug experiment with human beings as the subjects. Those implementing the death penalty would be authorized to inject new, unapproved, never-before-used, undisclosed drugs into the veins of a living person with the intent to kill.Experimentation with lethal drugs in executions in other states hasn’t gone so well. Take, for instance, the disturbing 2014 case of Joseph Wood in Arizona, who was injected 15 times with experimental drugs over two hours before he finally expired. As he lay “gasping and gulping,” according to the Guardian, executioners just kept pumping more and more chemicals into his arm.Make no mistake, the “would you rather?” choice being served up to the legislature today is not a choice between the gruesome electric chair and a more humane but secretive method of execution.There is nothing humane about experimenting on people with undisclosed drugs against their will.Moreover, there is no urgency to choose today between two disturbing outcomes. The seven people on death row aren’t going anywhere and the two closest to being executed have both received stays as they await possible hearings by the U.S. Supreme Court.The legislature should reject the governor’s amendments and embark on a long overdue discussion of whether Virginia should join the 18 states that have made the ultimate humane choice to discontinue the death penalty entirely.Everyone knows no one wins a game of “would you rather?”, let alone one in which the stakes are so high.Let’s hope the legislature tells the governor they’d rather not play at all.

The Office of the State Inspector General of Virginia’s recent report on Jamycheal Mitchell’s tragic death by neglect in the Hampton Roads Regional Jail has raised more questions than it has answered.The report, which details the well-publicized death of a mentally ill African-American man who died at the Hampton Roads Regional Jail while awaiting transfer to Eastern State Hospital, is notable for what it says about the dismal state of mental health services in Virginia. Of greater concern to the public, however, should be the many issues the report doesn’t address.Why are people with serious mental illnesses in jail in the first place? Why were law enforcement officials at the jail allowed to do a simple internal investigation and absolve themselves of wrongdoing? Who will be accountable for Mr. Mitchell’s death? Most importantly, how will we prevent this from happening again?The report highlights many points in the system where one clerical mistake or one negligent official can leave someone to languish and die in jail. Police failed to fully understand Mr. Mitchell’s mental health history before taking him into custody for the petty crime of stealing $5 worth of junk food. Local behavioral health officials failed to meet with Mr. Mitchell and asses his worsening condition. A clerk failed to deliver the court order to transfer him to a mental health facility. Hospital officials failed to act once the order was received. Naphcare, the private company hired by the jail, failed to provide adequate healthcare to Mr. Mitchell while he was in jail. And, Hampton RoadsRegional Jail officials failed to ensure the safety of someone in their custody.No justice system should be so tenuous and so full of pitfalls. It is a trap for many, but especially for those suffering from mental illness who now make up more than a quarter of the people being held in our jails.Jails are Virginia’s de facto solution to a lack of community mental health services. Nearly one in four inmates have a mental illness that requires treatment with drugs. Many of these inmates are clustered into overcrowded facilities with inadequately trained staff.The report on Mr. Mitchell’s death noted that state and local behavioral health officials consider inmates to be "in a safe environment" in these jails, and are a "lower admission priority for the Department of Behavioral Health." This is unacceptable. Jails are not therapeutic facilities. As a society, we have regressed to the 19th Century and a time of “asylums” if officials consider jail to be a safe environment for the mentally ill.Lawmakers have known about the problems within our jails for many years. The state Department of Behavioral Health and Developmental Services monitors the process by which mentally ill people are swept up into the criminal justice system. In 2014, the agency recommended changes to procedures, further oversight and accountability, additional training, and a complete overhaul of how people with serious mental illness are treated within the criminal justice system.Neither the General Assembly nor present nor past administrations have made these concerns and recommendations a top priority, despite reports calling for such urgency.This past session, the General Assembly did pass House Bill 685 that seeks to prevent orders from being “lost” as was the case with Mr. Mitchell. The new law requires General District Court Clerks to transmit orders for treatment to a mental health facility by the end of the next business day and the receiving facility must acknowledge receipt of the order by the end of the following business day.This is an inadequate first step in addressing the many problems facing our system. Even with this new law, if a judge issues an order near the weekend, it could be another five days before it is acted upon. The new law has no enforcement mechanism, as it absolves any individual official of liability except in cases of gross negligence or willful misconduct. It is a rule without a remedy for the people and families affected by a broken system.Our thoughts are with Mr. Mitchell’s family. It should not take a “critical incident,” as the report calls Mr. Mitchell’s death, to spur the state into action. We must put pressure on public officials to continue to investigate Mr. Mitchell’s death until all questions are answered, and those responsible are held accountable.The ACLU of Virginia and many other community advocates have continuously called upon public officials to reform our criminal justice system. People with serious mental illnesses should be taken to treatment centers, not to jail.

By Kerry Baumann Student, Douglas S. Freeman High SchoolRecently, Glen Allen High School in Henrico County showed a video to its students at an assembly as part of Black History Month. It sparked backlash from many parents and students.The video is entitled “Structural Discrimination: The Unequal Opportunity Race,” and it uses the metaphor of a rigged track competition to depict the various forms of institutionalized racism that impact African-Americans every day. Because of the widespread controversy over this incident, the Henrico County School Board issued an apology, which in turn caused even more outrage from proponents of the video’s message.Regardless of your opinion on this particular matter, we cannot pretend that race-related issues are not prevalent in Henrico County Public Schools. Further, they have historical, political, sociological, and economic relevance. The question is, will our schools not only permit but teach students to engage in constructive debate on important topics about which they may disagree – or will they turn away, leaving students to model their own discourse after the collective shouting now seen in social and traditional media?I should point out that I attend Freeman High School, where, despite having an exceptionally diverse student body, we remain the “Home of the Rebels.” Yes, we have stopped using a Confederate soldier as our mascot, but the issue continues to be debated between students, faculty, parents, and alumni.Also in the news recently are Mills E. Godwin High School Harry F. Byrd Middle School, both of which are named after pro-segregation politicians and advocates of the “massive resistance” movement in Virginia during the late 1950s and early 1960s. The Henrico School Board recently voted to change the name of Byrd Middle, but hasn’t yet said what the new name will be.Last year, 60 years after Brown v. Board of Education, UCLA conducted a national study in which Henrico County was singled out for its racial segregation. Clearly, race issues persist and in no way are they yesterday’s news.As a high school student, I know that race relations is an important topic for many young people. Students talk about it among themselves quite often, actually, whether we realize it or not. We notice unequal treatment in disciplinary practices. We see the differences between one end of the county and the other, or between Henrico County and Richmond City. Our social media feeds serve as evidence that we share opinions on race relations at a broader, national level, whether it be about educational disparities, socioeconomic conditions, police misconduct, or high levels of incarceration.If the purpose of public schools is to educate young people, then I think young people would agree that school needs to be a forum for conversation about these kinds of issues.Think about it: at most, students receive maybe a year or two of government/civics class. Even with that requirement, there is very little opportunity to engage in more controversial debates and discussions. Once we graduate, we students are off into the real world--we move away, we go to college, we find jobs, and we vote. We need to ensure that our school systems are effective in preparing us for our lives as engaged citizens and future leaders.

Imagine a future in which the government keeps secret the identity of every member of state and local law enforcement.It’s a frightening, Orwellian scenario that some legislators in Virginia thought was a good idea. Fortunately, a state House of Delegates subcommittee blocked the bill on Thursday, which would have allowed even more government information to be hidden away under the state’s F-rated open government laws.Senate Bill 552, sponsored by Sen. John A. Cosgrove Jr. (R-Chesapeake), would have exempted from public disclosure the names of every full- or part-time law enforcement officer and fire marshal in Virginia, including Alcohol Beverage Control officers, lottery investigators, local dogcatchers, state fish and game wardens and marine police, deputy sheriffs, and rookie traffic cops as well as the highest ranking law enforcement officers in the commonwealth.Proponents of the bill said it was necessary to protect police officers and their families from bad guys who might seek to harm them. They were not, however, able to provide any evidence proving their point. That is because shielding individual officers from evil-doers is not why the bill was introduced.The bill came about in response to an effort last year by the Virginian-Pilot newspaper in Virginia Beach to obtain names and training records of active duty law enforcement as part of a “Spotlight”-type investigation, which broke the pedophilia scandal in the Archdiocese of Boston and inspired an Oscar-nominated film. The Pilot wanted to find out whether officers dismissed for misconduct in one jurisdiction were being passed along to other departments to be put back on the streets with a badge and gun.Such an investigation could well draw attention to an ugly truth about law enforcement in Virginia. The process by which police officers can be decertified, preventing them from moving from locality to locality and repeating bad behavior, is shamefully weak and presents a danger to the public.The Virginia Fraternal Order of Police and the Virginia Association of Chiefs of Police fought the release of officer names and training records to the Virginian-Pilot in court. They lost, and so then they tried to change the law to make the records secret while misleading the public about their motivations and the bill’s real purpose.Let’s be clear: SB 552 was not about protecting individual officers or their families from harm. The sheer breadth of personnel covered by the act made that obvious. In addition, departments already have discretion to withhold an officer’s personal information from the public where there is an actual threat of harm. This bill was about making it difficult, if not impossible, for the press or the public to examine the hiring practices of Virginia law enforcement agencies or to develop a case for changes in our weak decertification law.SB 552 was also not in the interests of state and local law enforcement agencies if they are actually serious about their commitment to greater transparency and accountability that are essential to earn the trust of the people they are supposed to serve.SB 552 certainly would not have served the public interest. The public pays the salaries of every police officer and has a right to demand more, not less, transparency and accountability as conditions of earning its trust and support. The fact is the public actually would have been less safe if this measure had passed because it would have helped hide the type of problem the Virginian-Pilot was seeking to uncover. The result would have been that officers with multiple disciplinary violations, even for serious misconduct involving use of force, would continue to be enabled to practice policing in Virginia with the public being none the wiser.For that very reason, SB 552 also was an attack on the heart of the First Amendment. To the founding generation, the liberties of speech and press were intimately connected with popular sovereignty and the right of the people to see, to examine, and to be informed about the workings of their government. Police officers are the government agents everyday people interact with the most and therefore deserve — and should expect — public scrutiny.Proponents tried to minimize the bill’s impact by saying it wouldn’t really have prohibited release of officers’ names. They said the bill simply specified that names are part of personnel records and, as such, would be exempt from mandatory disclosure.Guess what? Government agencies in Virginia — and law enforcement ones in particular — rarely release public documents if not required to do so. The culture of secrecy that permeates law enforcement agencies in Virginia all but ensures that any record that can be withheld from the public will be withheld.Virginia’s shoddy Freedom of Information Act lists 130 types of records that are exempt from mandatory disclosure to the public. Almost without fail, anytime a member of the public asks for a document that might fall under an exemption, the government chooses to withhold it. Beyond that, agencies often just flout the toothless law, refusing to disclose documents that actually are required to be released.If SB 552 had passed, the secrecy of police officers’ identities would have been a given not a possibility. For now, at least, this dystopic vision can remain just a fantasy for law enforcement.

The ACLU of Virginia commends the Jefferson-Madison Regional Library Board of Trustees for its recent decision to create a new Freedom of Speech case for public displays at Charlottesville’s Central Branch.Previously, the library had required such displays be “age appropriate” and “balanced in their presentation of public issues.” This suggested that decisions about displays by the library (a government agency) would be content or viewpoint driven. The library’s board was forced to re-examine that policy after some patrons complained about a pro-abortion rights display sponsored by the Charlottesville chapter of the National Organization for Women.Last week, the board actually widened its policy, rightly recognizing that free speech must include discussion of challenging and even divisive issues, such as religious, political and social messages. The new display case will be in an area that only adults use and placed at least 20 feet from the front door. Only obscene, defamatory or material that incites is prohibited.While certain displays might continue to offend some patrons’ sensibilities, it should be clear now that the library has created a public forum. Its contents represent the views of their sponsors and not the library or government. Should anti-abortion advocates choose to exercise their right to free speech, they can take a turn sharing a message in the display case.When government creates a public forum, all viewpoints are welcomed. Kudos to the library board for understanding that opening up rather than contracting the forum is the right way to ensure free speech.

The following op-ed was published in the Richmond Times-Dispatch on Feb. 17, 2016.Proponents of two bills still under consideration in the Virginia General Assembly — Senate Bill 41 (SB 41) and House Bill 773 (HB 773) — say they are necessary to shield religious believers from persecution or prosecution.In fact, both bills either arm some, and only some, believers with a government sword to force their beliefs on others, or accord an unconstitutional government preference to some believers.No case has been cited, no facts reported, no evidence adduced that there is any real or imminent threat to religious freedom in Virginia. No legislation is necessary to protect Christian churches and other faith communities or any religious leader from being “forced” to marry people in their faith tradition when doing so would be inconsistent with the tenets of their faith.The First Amendment and the Virginia Statute for Religious Freedom are strong walls against any such action by government. The Virginia Religious Freedom Restoration Act passed in 2007 provides additional protection against any government action that “substantially burdens” anyone’s exercise of their faith.Why then is legislation being proposed, and what would be its effect?SB 41 offers those given the privilege of “solemnizing” a marriage on behalf of the state (a civil act) the authority to discriminate among people for whom they would provide that service based on any “sincerely held religious belief.” The bill would accord this privilege to discriminate not just to faith leaders who seek the authority to solemnize civil marriages, but to every judge and any person who obtains a court order allowing them to solemnize marriages on behalf of the state.It would not “burden” anyone’s free exercise of religion to require anyone who wants the authority to solemnize marriages on behalf of the state to do so without discrimination. Faith leaders would still be able to choose freely to perform or not to perform the religious rite of marriage without any state involvement, and people married by a faith leader or in a religious tradition that chooses not to marry certain people or couples could go to a judge or other civil authority to get their marriage solemnized for purposes of state recognition.SB 41 also says any religious organization or any unspecified organization “operated in connection with a religious organization” cannot be required to provide any “services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization of any marriage.” The bill doesn’t say this is related to the performance of the religious “rites” of marriage. It refers to the solemnization of the marriage civilly, which is a state action.This conflation and confusion of civil and religious marriage is purposeful. It leads to a broad grant of authority to discriminate based on religion in conducting a public function or offering services or goods related to a public function. No burden on the free exercise of anyone’s religion would exist if the right to discriminate was not authorized.HB 773 seeks to grant a special and even broader privilege to discriminate, and a private cause of action to enforce that right only to people who hold certain religious beliefs regarding same-sex marriage, premarital sex, and the definition of gender. The bill states the protections afforded this select group of believers would be “in addition to the protections provided under the United States Constitution, the Constitution of Virginia, and federal and state law.”This grant of special rights is clearly an unconstitutional establishment of religion that prefers one set of beliefs over all others.The Supreme Court of the United States has said “(t)he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” The court also has emphasized that “(t)his prohibition is absolute.” Any rule or law that purports to treat certain religious beliefs differently (and more favorably) than others must, at a minimum, be justified by a compelling governmental interest, and be closely designed to further that interest.The Virginia Constitution also expressly protects the “right to be free from any governmental discrimination upon the basis of religious conviction …”, Art. I Section 11. This also commands strict scrutiny of a statute, like this one, that creates a preferred status for certain beliefs over others.No compelling interest can be articulated to support passage of legislation creating special rights and legal causes of action only for people who have certain specified beliefs about sex and marriage. Passage of such legislation would constitute an establishment of religion. When government has a religion, we are all less free to believe.