Minutemen at Columbia

The vigilante border patrol group, The Minuteman Project, has received more than its fair share of attention in recent weeks. It all stems from an October 4th incident at Columbia University , where the group's founder, Jim Gilchrist, was invited to speak by the College Republicans.

Soon after Gilchrist began his speech, two Columbia students came onstage and unfurled a banner reading, "No One is Illegal." A tug of war over the banner ensued, and more people rushed onto the stage. Fists started to fly, and the event was shut down.

Unfortunately, a speech that should have been a blip on the media radar has instead catapulted The Minuteman Project into the national media spotlight. Lost in the wake of the spectacle and the debate about each side's free-speech rights is any serious discussion of our nation's immigration policies, which remain utterly dysfunctional and in need of comprehensive reform.

New Yorkers Protest Immigration Policies

On October 21st, hundreds of New Yorkers rallied at Union Square Park and marched to Times Square to call for full legalization, family reunification, an end to detentions and deportations, and equal rights for all workers.

Protesters constructed a Wall of Remembrance to memorialize their loved ones who have suffered under the immigration laws - in prison, in deportation, at the border, or in an abusive workplace - and a procession of mock coffins symbolized deaths at the border and the death of human rights. The protest was organized by New York United for Immigrant Rights.

Nonetheless, on October 26th, President Bush signed into law the Secure Fence Act, authorizing construction of a 700-mile border fence along the U.S./Mexico border. The fence is projected to cost at least $6 billion, though many experts doubt the wall's feasibility. The bill's enactment is widely viewed as election-year posturing by politicians who want to appear tough on illegal immigration.

Immigrants Running for State Office

Several candidates running for State Assembly this year hail from New York 's immigrant communities.

Democrat Alec Brook-Krasny is competing for an assembly seat against Republican Patricia B. Laudano in South Brooklyn 's 46th Assembly District, where the Russian American community has emerged as a potent political force. In the September primaries' tightest race, Brook-Krasny narrowly defeated his rival, Russian-language journalist Ari Kagan, by 94 votes. If he prevails in the general election, Brook-Krasny, who served as founding executive director of the Council of Jewish ?migr? Community Organizations, would become the first Russian immigrant in the country to be elected to a state legislature.

In Assembly District 22 in Flushing, Queens , Democrat Ellen Young, a former top aide to City Councilmember John Liu, will face off against Republican Christopher M. Migliaccio, a 23-year-old law student. Flushing is one of the most diverse communities in the nation, with established Irish and Italian communities living beside large Chinese and Korean immigrant populations. That diversity was reflected in the Democratic primary, where Young narrowly defeated Terrence Park and Julia Harrison by 122 votes. If elected, Young would become the first Asian woman to serve in Albany .

Norman Eng is an attorney and communications coordinator with The New York Immigration Coalition.

 

In a city where one in four New Yorkers is still in the process of learning English, City Hall is failing to take its own advice.

In what can only be dubbed a long-overdue acknowledgement of the desperate need for language access services in this city, New York City’s Department of Health released a report this summer, called The Health of Immigrants in New York City, which showed that language barriers prevent immigrant New Yorkers from receiving the same quality of care as their native-born neighbors. One of the report's primary recommendations to help New York’s population stay healthy is to break down language barriers in health care.

The problem of language barriers doesn’t stop here. Ineffective and incomplete language access creates problems that span every area of government services, problems that affect not only immigrants, but all New Yorkers still working to master English. How can the NYPD respond to a 911 call reporting a crime-in-progress from a U.S. citizen who recently arrived from Puerto Rico if the operator cannot find anyone who can speak Spanish? How can the Department of Labor enforce labor law if it is unable to interview the twenty-five percent of all workers in New York City who do not speak English?

And it’s not the immigrants who are the ones dropping the ball; they’re doing all they can to meet municipal government half way. Immigrants want to learn English. A recent study from the Pew Hispanic Institute reveals that a majority of Latino immigrants (as well as a majority of native-born Latinos) think immigrants should learn to speak English. Unfortunately, even immigrants who want to learn English are not able to access affordable English as a Second Language Classes. A report by the New York Immigration Coalition, entitled Eager for English, found that over ninety percent of the need for English classes went unmet. Thousands of immigrants are crowding ESL classes in churches and at community organizations, but city government is simply failing to make an adequate investment in English language classes.

Also, a recent study by the Urban Institute found that when immigrants speak English, they earn more money and they pay more taxes. Government investment in English classes expands opportunity and promotes increased government revenue over time.

City government cannot meet its obligation to keep New Yorkers safe and provide effective services without breaking down language barriers by providing translation and interpretation services.

The fact that one out of every four New Yorkers does not yet speak English is, frankly, shocking. The fact that Mayor Bloomberg’s initial budget sought to reduce funding for English as a Second Language classes is even more so. Even after the City Council negotiated a restoration of some funding for English language classes, the city is still investing only a miniscule fraction of our budget to promote learning English.

To be fair, over the past few years, New York City has responded to grassroots advocacy on this issue by promoting language assistance services at some government agencies. For example, in 2003, Mayor Bloomberg signed the Equal Access to Health and Human Services Law, legislation that requires City Medicaid, Food Stamps and Welfare offices to provide forms and service in six languages. The law has ensured that all New Yorkers who are eligible for these important federal benefits are able to access them. Similarly, this past February, Mayor Bloomberg and City Council Speaker Christine Quinn announced new Chancellor’s Regulations for the city Department of Education that require schools to provide language assistance services that will promote academic achievement and meaningful parental involvement for hundreds of thousands of immigrant families.

Yet, despite these improvements, most city agencies remain wholly unprepared to provide effective service to today’s New Yorkers. For example, a study published this spring by the Urban Justice Center and a coalition of community organizations found that over half (fifty-five percent) of New Yorkers were unable to file complaints about hazardous housing conditions with the Department of Housing and Development (HPD) because of language barriers, or were only able to file complaints with the help of a translator they personally supplied. Language barriers prevented these New Yorkers from holding their landlords accountable for breaking the law.

Responsible government requires a two-pronged approach to ensuring accessible and effective services for all New Yorkers. Expanding language assistance services promotes equitable and effective government. Expanding accessible English classes promotes integration and reduces the need for translation and interpretation services over the long haul.

Andrew Friedman is a fellow of the Drum Major Institute for Public Policy and founding co-director of Make the Road by Walking

 

The New York Police Department has published a rule that could end the long-held and cherished right of protesters to proceed down the sidewalks of New York. It also imposes restrictions on two or more vehicles or bicycles “proceeding together.” A hearing is scheduled for Police Plaza at 6 PM on Wednesday, August 23 on the proposed rule, which would be put into place by “the authority vested in the Police Commissioner” rather than through local law. [Update August 21: The police department has withdrawn some of its proposed rules, and the August 23 hearing has been cancelled]

The rule has drawn the ire of civil liberties organizations. When civil rights activists led by the Rev. Martin Luther King, Jr. could not get permits for marches through the streets of the segregationist South in the 1950s and 1960s, they resorted to staying on public sidewalks, observing traffic lights at corners, and being careful not to interfere with pedestrian traffic. Even then they could run afoul of racist police forces, but at least the courts held that the protestors were within their rights.

Permits are required for marching through the streets or assembling in the public parks of New York, a right that has become increasingly restricted in the last decade or so. Whenever a protest group didn’t have time to get a permit--especially for a small demonstration--it was able to assemble and march on the sidewalk as long as it did not impede traffic.

The other provisions of the proposed rule, quietly made public on July 18, are aimed squarely at the long-running dispute between the police and Critical Mass, the bicyclists group that has been organizing group bike rides through the streets of New York on Friday nights as a combination of outing and protest. More than 260 of these bicyclists were arrested during protests at the Republican National Convention in New York in 2004.

Under the proposed rule, any “procession or race” of 20 or more vehicles, bicycles, or “herded animals” on a public street or sidewalk will require a parade permit. Moreover, two or more pedestrians, vehicles, or animals in a “procession or race” that fail to comply with traffic rules--already a violation--would be able to be charged with parading without a permit.

Clyde Haberman, in his New York Times column wrote, “Be honest. Have you never, while strolling or biking with a companion, crossed the street against a red light? It would seem that the two of you will now, technically speaking, qualify as a parade. And since you probably will not have first asked the police for a parade permit, it appears that you will--again technically--be breaking two laws. What happened here is that a molehill became a mountain.”

Norman Siegel, the civil rights attorney who represents Critical Mass, told Associated Press, “If the rules were adopted, New Yorkers will need the government’s permission to exercise their First Amendment rights, and that’s totally unacceptable.” Police Department Deputy Commissioner Paul Browne countered that opponents of the new rules are “grasping at unrealistic scenarios.”

Ann Northrop, a veteran organizer of scores of protests for the AIDS Coalition to Unleash Power (ACT UP), said, “The cops feel that they must always be in control and they live in fear of losing control and anarchy breaking out. They therefore go overboard to try to shut down everybody’s freedom of movement. They really believe in and want a police state and Giuliani and Bloomberg--and even Dinkins--have been more than happy to accommodate their approach.”

Police Commissioner Kelly, in an op-ed piece in the New York Post called “Protests & the NYPD: Keeping Speech Free and Safe,” said that the department is responding to a ruling by Justice Michael Stallman in the Critical Mass case that parade rules in the city were too vague. Kelly wrote, “None of the clarifications {in the proposed rule] in any way impinge on free speech or the message behind a march, parade, or protest. They impose no new penalties or punishments, and are in complete conformity with the conceptual framework of existing law.” He noted that the bicycle protests constituted “a real public safety problem” and had to be addressed.

“Every day,” Kelly wrote, “the department performs the great juggling act of accommodating street fairs, protests, parades and performances of one sort or another - while also safeguarding the participants and the public, and without letting the rest of the city grind to a halt.”

While mayors and police commissioners always say that they are acting to protect public safety and uphold the First Amendment, a federal lawsuit against Mayor Bloomberg brought by protesters at the Republican Convention in 2004 has revealed that his motivations may have really been political. Court documents in the case reveal, according to NY-1 News, that “an internal email a city parks official wrote back in 2004 says: ‘It is very important that we do not permit any big or political events for the period between August 23 and September 6, 2004....It's really important for us to keep track of any large events (over 1,000 people), and any rallies or events that seem sensitive or political in nature.’” The New York Sun headline said, “’Mike’s Re-Election’ Concern Stopped Park Concert.”

Bloomberg denied knowledge of the groups that were denied permits, but the Times reported, “Mr. Bloomberg's involvement in the deliberations over the protests may have been different from how he and his aides have portrayed it.”

The suit was brought by the National Council of Arab Americans and the ANSWER Coalition, which had sought to rally on the Great Lawn of Central Park. It was blocked by courts, which agreed with the “security” concerns of the police.

The city is also having to pay out millions of dollars in settlements to the protestors police wrongfully arrested or detained during the Republican Convention.

City Council Speaker Christine Quinn issued a statement on July 20 saying, “These proposals raise significant questions that we are examining carefully.” No word as of this writing what action the council will take if the police department does not address Quinn’s concerns such as whether the rule constitutes “too broad a definition of a parade” and First Amendment concerns. Manhattan Councilmember Alan Gerson told the Times, “Let us remember that part of the right to protest is the right to spontaneously protest.”

Chris Dunn, associate legal director for the New York Civil Liberties Union, told Gotham Gazette, “It is quite likely that the rule will not be adopted in its present form. The police department can adopt a different rule or no rule at all.” He stressed that while the rule doesn’t restrict the right of assembly, “a family of four that doesn’t stop at a traffic light could be arrested.”

“The last thing the police department needs is to have to negotiate every funeral procession or class trip,” Dunn said. “They have better things to do.” He noted that the permit process can be arduous and take months.

The civil liberties union is in talks with the police department to get the rule modified or dropped and with the city council in case the negotiations with the police fail. “The Police Department is trying to rewrite the rules on permits,” Dunn said. “That’s the council’s responsibility.” If neither the police nor the council addresses the First Amendment concerns, Dunn’s group is prepared to go to court over it.

Noah Brudnick, deputy director for advocacy at Transportation Alternatives, a group that advocates for “better bicycling, walking, and public transit, and fewer cars,” in a city notably hostile to them, said the rule would “deter New Yorkers from walking and riding bikes” because it would make it “much more difficult for recreational clubs to organize runs, jogs and bike rides.” He also said the potential restrictions on walking tours and sightseeing “would hurt the economy of the city.”

Brudnick’s group, too, is working with the council on alternatives to the new police rule and mobilizing for the public hearing at the Police Department on August 23.

City Prevails in Suit Challenging Right to Inspect Bags on Subways

The Second Circuit Court of Appeals, a federal court, ruled unanimously on August 25 that the city had the right to randomly inspect bags being carried into the subways. Judge Chester Straub wrote, “We will not—and may not—second-guess the minutiae” of the decisions made by city counter-terrorism experts and elected officials who have “undertaken the delicate and esoteric task of deciding how best to marshal their available resources.” City Corporation Counsel said that the court agreed that the inspection program “balanced subway security and civil liberties.” Police Commissioner Kelly said, “Common sense prevailed.”

The inspections were begun last July after the London subway system was attacked by terrorists with bombs, killing more than 50 people. While the police have retained the right to inspect bags, the inspections have been much less evident in recent months. People trying to enter the subway retained the right to exit the station without submitting to an inspection, but they could not board trains.

The New York Civil Liberties Union had argued that the “unprecedented search program is not sufficiently effective to justify subjecting the millions of daily subway riders to suspicionless police searches. The NYCLU therefore has asked the courts to halt the program as violation of the Fourth Amendment to the United States Constitution.”

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

The 4-2 decisionof the New York State Court of Appeals denying that same-sex couples have a constitutional right to marry was more than just a blow to the gay rights movement. It was the most visible example of a project that has taken Governor George Pataki three full terms to accomplish and is not yet complete: establishing a solidly conservative appellate judiciary in a state that had a well-deserved reputation for a liberal one.

Although the issue of gay marriage may not be the best issue to assess the court's direction, the decision on same sex marriage "does not auger well for the future of civil liberties in this court, " said Art Eisenberg, legal director of the New York Civil Liberties Union.

“Up until recently, this was a centrist court that could go back and forth,” he said. But now, he said, “we are increasingly disappointed by the capacity of the state courts to protect individual rights, so we have chosen federal courts more frequently than state courts to bring our cases.”

The Appeals Court

In their decision in the marriage cases, the high court set out a limited definition of civil rights. Rejecting comparisons between laws barring marriage between African-Americans and whites and same sex marriage, the majority decision said, "Racism has been recognized for centuries - at first by a few people, and later by many more - as a revolting moral evil," while "the idea that same-sex marriage is even possible is a relatively new one." The plaintiffs, said Judge Robert S. Smith, ""have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals."

Professor Arthur Leonard of New York law school, a leading scholar on gay legal issues, wrote in the Gay City News that to Smith the word “rational,” when used to evaluate legislative action, includes acting out of habit or custom, even in the face of contrary evidence. Smith apparently believes it is rational to preserve existing social arrangements even when they have the effect of discriminating against a segment of society.”

What’s more, Smith failed to note that, just two years before the U.S. Supreme Court outlawed anti-miscegenation laws in 1967 in the Loving v. Virginia decision, the Gallup poll found that 72 percent of Southern whites and 42 percent of Northern whites opposed inter-racial marriage.

Smith is a Pataki appointee, as are two of the three other judges who ruled against same-sex marriage. Both judges who dissented were named to the bench by liberal Democrat Mario Cuomo.

Court of Appeals judges in New York are appointed to 14-year terms, which means that, until recently, Cuomo appointees dominated the seven-member bench on the state's highest court. Three of those Cuomo picks still remain: Chief Judge Judith Kaye and Judge Carmen Beauchamp Ciparick, the two judges who dissented in the marriage case, and Judge George Bundy Smith, who joined the majority.

Bundy Smith--not to be confused with Pataki appointee Judge Robert S. Smith, who wrote the plurality opinion--has a term that ends in September. He is angling for a reappointment by Pataki, even though he would only be able to serve one more year before reaching the mandatory retirement age of 70. Most observers believe that Pataki, now contemplating a run for the Republican nomination for president in primaries dominated by conservative voters, is unlikely to reappoint Bundy Smith, the court's only African American, who had a relatively liberal record. Naming Bundy Smith to the bench again would deprive Pataki of the chance to nominate a more conservative judge for a full 14-year term.

Pataki's successor will have the opportunity to replace Kaye, whose term expires in March 2007, and Ciparick, whose ends in January 2008. The court's current "swing vote," Albert Rosenblatt, a Pataki appointee who recusedhimself in this marriage case because he has a lesbian daughter who has written briefs in favor of the cause, will have to retire when he turns 70 next year.

If the leading gubernatorial candidate, Attorney General Eliot Spitzer, a Democrat, prevails in November, he can replace these three with progressives. But Pataki's mark on the court will still last for seven more years.

Four Pataki judges would remain on the bench: Bundy Smith's likely replacement; Robert Smith, who can serve until the end of the year he he hits 70, 2014; Judge Victoria A. Graffeo, who is done in 2014; and Judge Susan P. Read, whose term lasts until 2017. These judges represent a conservative majority on the court. A new governor would not be able to change that until the end of his or her second term.

The conservative ascendancy in Appellate Division, the state's lower level appeals court, is even more evident, with two of its four departments ruling 5-0 and 4-1 to deny gay couples the right to marry. Associate appellate justices are selected by the governor from among the member of the Supreme Court -- the lower court -- and serve five-year terms. The presiding judge for each department is also appointed by the governor and serves until the end of his or her term. These judges, too, must retire at the end of the year in which they turn 70, but unlike high court judges, they do not have to be confirmed by the state senate.

While U.S. Supreme Court nominations--think Clarence Thomas--have become national circuses, nominations to the New York State Court of Appeals generally sail through the State Senate with virtually no controversy. Up until now, neither liberal nor conservative advocacy groups have made much of an issue of judicial nominations.

But that may change in the wake of high profile cases like the same-sex marriage decision. "Reporters should ask both candidates [for governor] about their plans for court appointments. The stakes are high," wrote Walter Olson of the libertarian Manhattan Institutein the New York Post recently. "For years, New York's high court was among the nation's most prominent liberal voices on criminal-justice issues, delighting civil libertarians and frustrating police advocates with rulings extending Miranda rights, the exclusionary rule and so forth. That's been changing lately as Pataki appointments have joined the court. Republican nominee [John] Faso, who has promised to make crime an issue this fall, may argue that opponent Spitzer is too beholden to Democratic constituencies to follow up on this trend."

Vincent Bonventre, professor of law at Albany Law School and a recognized expert on New York appellate courts, said the Court of Appeals “took a swing to the right beginning in 1996” when Pataki and former Mayor Rudolph Giuliani condemned it as “the most liberal in the country.” Bonventre said, “One of the worst cases was the 1999 case of the People v. Ralph Tortoriciabout an insane guy who held students hostage at SUNY Albany, and the court said it was OK to prosecute him even though they couldn't find one psychiatrist in the state to say he was sane.” As for the Appellate Division, bonventre said, “The first department in Manhattan used to be one of the most liberal courts in the country; now it is one of the most conservative.”

The New York courts' turn to the right obviously pleases leaders such as Faso, the Conservative and Republican nominee for governor. Responding to the marriage ruling, Faso said, "The Court of Appeals correctly interpreted state law and put the question of the legality of gay marriage squarely in the hands of the Legislature and governor. Like many New Yorkers, I view marriage as both a civil and religious institution. Same sex marriage runs contrary to the religious traditions of millions of New Yorkers of all faiths. If elected governor, I will work to ensure that marriage remains a relationship between a man and a woman."

Next Stop: The Legislature

The fight for gay marriage in New York State will now move to the legislature. But few supporters of same sex marriage predict a quick or easy victory. "It is going to take a while," said Eisenberg. "This is a do-nothing legislature." Assemblymember Deborah Glick, an out lesbian, echoed this, saying, "It is difficult to imagine the state legislature moving in an appropriate or positive fashion [on legalizing same-sex marriage] anytime soon."

Alan Van Capelle, director of the www.prideagenda.org Empire State Pride Agenda, which organized rallies of thousands of same-sex marriage supporters on the day of the decision, said, "There is no reason why gays and lesbians can't win marriage in New York in two years." But he acknowledged that, so far, only 22 out of 151 Assembly members and nine out of 62 state senators have publicly supported such a measure.

"It's time for the Democrats in the Assembly to use their 66-seat majority to pass a marriage equality bill," said Matt Foreman, director of the National Gay and Lesbian Task Force. But Democratic Assemblymember Andy Hevesi, a supporter of same-sex marriage, said that if a vote were held tomorrow, "it would be close."

As for the two most powerful members in the legislature, Republican Senate Majority Leader Joe Bruno celebrated the court's decision. Democrat Assembly Speaker Sheldon Silver issued a statement refusing to comment on it, while promising to take up the issue with his Democratic conference. That meeting is unlikely to occur until after the new members are seated in January.

Spitzer and Bloomberg

The politics surrounding the gay marriage case often seemed surreal. Two politicians who say they support gay marriage played key roles in the defeating it in the court. The office of Attorney General Eliot Spitzer, who promises to introduce a pro-gay marriage bill next year if elected governor, defended the law barring same sex marriage. Mayor Michael Bloomberg, another ostensible supporter of same-sex marriage, successfully appealed the only lower court ruling mandating licenses for gay couples who want them.

The court majority picked up on several arguments made by Spitzer and Bloomberg. For example, the judges said that only heterosexuals can "spontaneously procreate" and that that constituted a "rational basis" for a law that only allowed male-female couples to marry.

"This is Eliot Spitzer and Mike Bloomberg's legacy to the gay community in New York," said Allen Roskoff, president of the Jim Owles Liberal Democratic Club and a longtime gay activist. "They should be ashamed of themselves for arguing against our fundamental right to marry."

Donna Lieberman, director of the New York Civil Liberties Union, said Bloomberg must now "put his money where his mouth is--literally and figuratively," and get behind the campaign to pass an equal marriage bill in Albany with his considerable personal fortune.

Meanwhile, Conservative Party Chair Michael Long has said he intends to use his power to endorse candidates in elections – thereby giving them a second line on the ballot -- to put pressure on many Republicans and a few Democrats to oppose same-sex marriage. And so, with both sides seeking to mobilize supporters and use their power and influence, it seems clear Albany faces a protracted, hard-fought showdown over same sex marriage.

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

There is no constitutional right to marriage unless your partner’s sex is the opposite of yours, announced the New York State Court of Appeals. The 4-2 split could be summarized as, “It’s all for the children,” versus, “There are enough marriage licenses for everybody.”

Same-sex marriage will continue to be barred in this state unless the Legislature changes the law.

The New York City case, Hernandez v. Robles, is one of four combined cases from around the state. After being denied marriage licenses, 44 same-sex couples brought lawsuits seeking to invalidate the Domestic Relations Law and the issuance of marriage licenses to heterosexual couples only. The plaintiffs, who range in age from 30 to 68, and include a doctor, police offer, teacher, nurse and a member of the State Assembly from the Upper West Side, alleged violations of the state Constitution.

In rejecting that argument, the main opinion by Judge Robert S. Smith is based on the theory that the existing laws reflect a rational legislative and state interest.

The opinion deferred completely to the Legislature, though the court clearly has the power to strike down existing laws. Judge Smith wrote, “The right to marry is unquestionably a fundamental right. The right to marry someone of the same sex, however, is not ‘deeply rooted.” Therefore, by limiting marriage, the legislature “has not restricted the exercise of a fundamental right.” In her sharply contrasting dissent, Chief Judge Judith S. Kaye said that marriage could not be fundamental for heterosexuals only.

The four judges who voted to uphold existing law (one of the seven judges recused himself) quickly dismissed the argument that the Domestic Relations Law does not specifically say, “man and woman,” finding the heterosexual nature of the statute in references to “bride” and “groom” and “wife and husband.” They determined that, since the law treats women and men alike -- they are permitted to marry people of the opposite sex, but not people of their own sex -- there is no discrimination. It is just heterosexuals and homosexuals who are treated differently.

While the court agreed with plaintiffs and their supporters that there are advantages to marriage in many areas, such as taxes, wills, and insurance, the judges concluded that the denial of such benefits to same-sex couples is not irrational or unconstitutional. In fact, the court found that the legislature has a right to offer “an inducement - in the form of marriage and its benefits … to opposite-sex couples who make a solemn, long-term commitment.”

The opinion spelled out that “heterosexual intercourse has a natural tendency to lead to the birth of children, while homosexual intercourse does not. And, despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman.” Furthermore, said Judge Smith, “The Legislature could also find that [gay and lesbian] relationships are all too often casual or temporary.... The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” This the judge called “common sense.”

The dissenters, though, argued, “marriage is about much more than producing children.”

Both the main and dissenting opinions refer to the U.S. Supreme Court’s 1967 decision that laws banning interracial marriage were unconstitutional. According to the Smith opinion, barring gays from certain rights is different. Racism, the decision said, “has been recognized ... as a revolting moral evil” with a “long and shameful” history.

In contrast, the court held that the plaintiffs in the case had not convinced the court that the restriction against gay marriage “is a wholly irrational one, based solely on ignorance and prejudice against homosexuals.” Using language that incensed the gay community, the opinion, while conceding “there has been serious injustice in the treatment of homosexuals,” says, “its history is of a different kind, lacking in centuries of struggle.” One black gay man who attended a Greenwich Village protest following the release of the opinion, said, “It feels the same to me.”

In the dissent, Judge Kaye joined by Judge Carmen Ciparick, wrote that because marriage has previously been limited to heterosexuals does not mean that such a restriction is not discriminatory. In fact, the dissent said, “Limiting marriage to opposite-sex couples undeniably restricts gays and lesbians from marrying their chosen same-sex partners … and thus constitutes discrimination based on sexual orientation.” The dissent continues, “A history or tradition of discrimination does not make the discrimination constitutional . . . it is circular reasoning . . . to maintain that marriage must remain a heterosexual institution because that is what it historically has been.”

Plaintiffs are denied the rights and responsibilities of civil marriage “because of whom they love,” concluded the Chief Judge. She called the decision “a misstep,” and taking a longer view, predicted change in the future. “This state has a proud tradition of affording equal rights to all New Yorkers,” she wrote. “Sadly the court retreats today from that proud tradition.”

 

Nancy Foner, a professor of sociology at the City University of New York, met recently with the Gotham Gazette Reading NYC Book Club to discuss her book, In A New Land: A Comparative View of Immigration -- and the distinctive experience of immigrants in New York. The following is an edited transcript:

NEW YORK AND THE NATIONAL IMMIGRATION DEBATE

GOTHAM GAZETTE: Let's start with the national debate, which at times has been quite nasty. In New York though, it seems to have been less nasty. Everyone from the mayor on down seems to be on the same side of the fence. Is that your view, and if so, why is that?

NANCY FONER: It is my view. I don't want to paint a picture of New York as an immigrant's paradise, because I think that's too strong. However, compared to other places in the nation it is a very immigrant friendly place.

Obviously one reason is New York's immigrant history. Almost everybody in New York is close to their immigrant roots. If someone is not an immigrant, they're the child of an immigrant, or a grandchild of an immigrant – like myself – or a great-grandchild of an immigrant.

Something else that is distinctive about New York in comparison to places where there is a lot of anti-immigrant feeling is that New York has a very diverse mix of immigrants, and every single racial group in New York has a significant proportion of immigrants.

New York is amazing. There must be at least one person from every country in the world. If you look at the top three groups in 2000 – Dominicans, Chinese, and Jamaicans – together they were a little under 30 percent of immigrants. No other group was over five percent. That's pretty amazing – it's so diverse.

A third of immigrants in New York are from Latin America, including Dominicans. A quarter of the immigrants in New York are West Indians or Africans. A fifth are Asians. We also have large numbers of Europeans in the top groups. If you put together all the people from the former Soviet Union, they are one of the very top groups, but it's not done that way any more. Still, Russians, Ukrainians, and Poles, all three of those groups are in the top fifteen. So we have huge numbers from Europe, Asia, Latin America, and the West Indies. It is what makes New York really stand out.

New York also gets a pretty good skill mix. There is about an equal mix of high skilled and low skilled immigrants. About a quarter of adult immigrants in New York have a college degree or more.

Then we get to the issue of the undocumented, which is in the news everywhere now. A widely quoted figure is that there are half a million undocumented immigrants in New York City. Well, that is an estimate; we don't really know. That is one out of six. Five out of six are not undocumented, which means that the vast majority of immigrants in New York are legal. [The rate of undocumented immigrants] is much higher in California and the Southwest.

If you look at the political leaders in New York, there is a closeness to their immigrant roots, and a sensitivity to immigrants. Also there's a political calculus involved. I think it would be political suicide for any aspiring political candidate in New York to take a stand that would be antagonistic to immigrants. Thirty-six percent of the city's population is foreign-born. If you put together the children of immigrants and immigrants, we're talking about over fifty percent of the population. Not all of these immigrants are citizens and can vote, but their American-born children are citizens, and increasing numbers of immigrants are naturalizing.

There is now dispersal to places that haven't seen immigrants for over 100 or 150 years. All of a sudden these places are getting an inflow of largely Mexican immigrants, and that has been a jolt.

Just to mention one other factor that is making illegal immigration such a big issue right now. Over the past decade there has been a dispersal of immigrants away from gateway cities. New York still has nine percent of the country's immigrants. A fifth of the nation's immigrants live in Los Angeles County and New York City; if you look at the metro areas, New York and Los Angeles have a third of the country's immigrants. We're still getting large numbers of immigrants moving to the major gateways. But what is also happening is dispersal to places that haven't seen immigrants for over 100 or 150 years: small towns in the Midwest, and many places in the South. All of a sudden these places are getting an inflow of largely Mexican immigrants, and that has been a jolt.

GOTHAM GAZETTE: How would what’s being discussed on the national scale affect New Yorkers?

NANCY FONER: It will affect New York’s undocumented immigrants in terms of the enforcement measures and of course if pathways are opened to legalization, although we don’t really know yet, since the law hasn’t been passed. The other issue is whether all of this enforcement is going to really stop the flow of undocumented immigrants?

PAUL COGLEY: I was amazed by the amount of people who were marching down Broadway in support of immigrants. It was truly an incredible showing. What do you think of that, and what do you think they were trying to tell New York by getting together in such numbers?

NANCY FONER: I don't know how much they were trying to tell New York. I think they were trying to tell the US government – the Senate and the House – that they wanted legislation that would help undocumented immigrants and provide a pathway to legalization. There was a national movement to get everybody out, and to make it clear to Congress to vote a certain way.

IMMIGRATION AND RACE

GOTHAM GAZETTE: One of the things you mentioned about New York in your book is that while it is an exception in many ways – and people who live in New York obviously like to think of themselves as an exception to everything else that happens in the country – there are other ways in which it’s not. What does New York have in common with other places in the country?

NANCY FONER: The issue of race and the legacy of slavery is one. I have studied Jamaicans in England and I studied Jamaicans in New York. And of course Jamaicans are predominantly people of African ancestry. And they certainly point out that New York is not a racial paradise or a paradise for immigrants. Coming to New York for West Indians of African ancestry is really very difficult in terms of issues of race. They experience a kind of prejudice here that they did not experience in their home country.

Coming to New York for West Indians of African ancestry is really very difficult in terms of issues of race. They experience a kind of prejudice here that they did not experience in their home country.

And I think a fact that many New Yorkers are really not so aware of is the remarkably high rates of residential segregation between whites and blacks. Sociologists who do studies [use an index where] the least residential segregation [between two groups] is zero and total segregation is 100. The figure for West Indians and non-Hispanic whites is 82. That is the same as for African Americans and whites. You only have to go to neighborhoods that are heavily West Indian in New York to see this.

BOOK CLUB MEMBER: Isn’t part of the segregation a process of how difficult the real estate market is in the city? Most people, no matter what their color, find that it’s very difficult to find a place to live if you don’t have a contact. And I think because of that, a lot of new immigrants move in with somebody they already know and often live often illegally initially.

NANCY FONER: I think there are two things going on in terms of where people live. One is choice, and you’re right. When immigrants come here, they want to live in a neighborhood with people they know, where there are familiar institutions, with the food they like, with the church they want to go to, where they feel comfortable. So yes, choice is involved, and that’s partly why you get these ethnic communities developing.

But there are also two constraints. One is money. Many immigrants would like to live on Park Avenue if they could, but they can’t obviously. They don’t have the money so that limits them to certain neighborhoods.

The other is race. We see this in terms of West Indians. You know they move into a neighborhood, East Flatbush is a prime example, or Canarsie. As soon as a neighborhood begins to have a substantial number of blacks, whites begin to leave, no new whites move in, and other blacks, both African American and West Indian, find the neighborhood more comfortable, so more of them move in. West Indians, interestingly, have been among the pioneers in moving into white neighborhoods. But they quickly find that the neighborhood begins to turn and become blacker.

JOAN DECAMP: But when immigrants become Americans – maybe the second generation – they're out of Brooklyn, they're out of Queens. They move to an American kind of suburb.

NANCY FONER: For many that will be true.

One of the interesting things we have now is that many immigrants are going straight to the suburbs. This includes many who are poor, and the reception is often not so friendly.

BOOK CLUB MEMBER II: There’s a myth of white racism. Everything you're talking about is more the result of socio-economic factors; people always feel more comfortable within their own culture. It has nothing to do with race, but it always gets blamed on white racism. There's no reality to it in this day and age, especially in New York. Yet white scholars seem to perpetuate this myth of white racism as an explanation of all the problems that these different groups have.

GABRIEL THOMPSON: You must be lucky to not ever meet any racists.

BOOK CLUB MEMBER II: Well, I don't. Especially in this day and age in New York it's such a rare thing.

GABRIEL THOMPSON: You can't call it a myth. It exists.

BOOK CLUB MEMBER: There will always be incidents, but the institutionalization of it is a myth.

NANCY FONER: It would be nice if it was a myth, but unfortunately it is not a myth. Obviously there are various factors going into residential patterns, but the fact is that we do live in a society where if people who are black seek to live in neighborhoods that are white, they're often not even shown homes there.

JOAN DECAMP: Or the other way around. If you're a white person and you want to live in St. Albans, you're not welcome.

NANCY FONER: One of the interesting things that is emerging from this discussion is that there's more tension and conflict being engendered by immigrants moving into New York neighborhoods than is often thought, and that there is a resentment of immigrants moving into some neighborhoods.

SUCCEEDING AS NEW AMERICANS: THEN AND NOW

BOB ZANE: You mentioned the strong prejudice in certain areas against the Jamaicans and West Indians. Do you find more people against them than against the Latinos, or the Jews who came to the Lower East Side, the Chinese people in Chinatown, the Irish people in Hell's Kitchen, the black people in Harlem?

It seems to me that the people coming today have it better because there are all these laws passed for more equality, and the people who are coming are more educated – the Jamaicans, many of them are educated in an English type system. Wouldn't they have it easier than the people who came before and couldn't speak English?

NANCY FONER: The migration 100 years ago to New York was Jewish and Italian, and there was tremendous prejudice against them. They were thought of as racially inferior -- as belonging to inferior white races. There was tremendous open discrimination against them.

Eventually those groups did become fully part of the mainstream and thought of as unquestionably white, and not as inferior white races or what some historians call "in-between peoples."

Today many of the groups that come in are thought of as not white, and the question often raised is will they too over time become accepted the same way that Jews and Italians were. And the question is, will this happen and how will this happen? Intermarriage, we know, is one of the engines of change. There’s a lot of intermarriage, particularly between Latinos and whites, and Asians and whites. Much less between African Americans (and people of African ancestry) and whites; those rates are still very low.

One scenario that is presented is that the category "white" will expand the way it did in the past in order to encompass Jews and Italians

So one scenario that is presented is that the category "white" will expand the way it did in the past in order to encompass Jews and Italians so that you’ll have people who are considered non-Hispanic whites now, along with many successful Asians, light skinned Latinos, and multiracial, light skinned children.

Another scenario, and I’d say many social scientists feel this may happen, is a shift to a black/not black division. You’ll have Asians, Latinos, whites in one category and people of African ancestry in another. Those predictions are based on realities of black-white residential segregation, which we know is very high, and the relatively low rates of intermarriage between blacks and whites.

Yet a third scenario foresees a kind of Latin American system developing where what matters most is class, not color. It won’t matter so much what you look like in terms of physical features; it will be more important what your economic status is.

Which one will emerge we don’t know, but I think one of the things that is exciting about New York right now, or actually the United States, is that we are living through a period of change. Nobody could have imagined if you had said to people in 1900 that Jews would be members of the New York Yacht Club and all the fancy clubs and attend all the elite schools, and that they would be among the privileged. People wouldn’t have imagined that that could ever have happened. So who knows what the future will bring?

GOTHAM GAZETTE: You mentioned that when Jews and Italians came in the early 20th century, they were thought of as inferior. Then there was a period over which they “became white”. How did that happen?

NANCY FONER: Partly it was assimilation – the children being born in America and speaking English and learning American ways and doing better economically. That wasn’t inevitable: the Japanese on the West Coast did better economically, but they weren’t considered white. I think intermarriage was certainly another factor. Also, with the Holocaust, anti-Semitism certainly became less respectable. There was a change of views of race in the scientific world, too.

Another factor was the struggles by the groups themselves to eliminate barriers that excluded them. Jews in particular fought hard to get anti-discrimination laws passed.

Then there was a huge African American migration from the South. When the Jews and Italians were coming, say, in 1910, only two percent of New Yorkers were African American. But after World War I there began a large migration of Southern blacks. And so by the 1930s and 1940s when the children of the immigrants were climbing the economic ladder, the racial order of New York was also changing to one more focused on color. One dynamic of establishing themselves as fully white, and historians have written about this, was distancing themselves from African Americans.

GOTHAM GAZETTE: Do barriers exist for today’s nonwhite immigrants that did not exist then? Or are they in a better position?

NANCY FONER: Some are in a better position. Many immigrants who are coming today are very highly educated, and many of them come speaking English. So, actually many of them are moving ahead faster than happened in the past. Some are even moving right into elite institutions.

Of course Asians are the prime example. They have a higher proportion of college graduates than non-Hispanic whites in this country. Many Asian immigrants are very highly educated and it’s not surprising that their children are doing astoundingly well. And so that’s moving them ahead faster, I think.

Also, there was enormous prejudice in this country in the past against Asians. There were specific laws to keep them out, starting with the Chinese Exclusion Law in 1882. They were aliens ineligible for citizenship. Of course during World War II, the Japanese were rounded up and put in internment camps. There was huge prejudice against Asians in New York. I grew up in Queens in the 1950s. When a Chinese family tried to move in around the corner from me, there were petitions to keep them out.

That would not have happened today. Asians have become a model minority: “almost white.” They’re not white, but successful Asians I think generally move fairly easily in a white world. And we’ve seen that from intermarriages, which are common. It doesn’t mean that there still isn’t prejudice against Asians, because there is, but they really have made enormous strides. And that is very different from 100 years ago.

THE GOOD OLD DAYS?

GOTHAM GAZETTE: This is something it seems you now hear three times a day: that the last big wave of immigrants came legally, assimilated easily, quickly got jobs and became “Respectable Americans.” How much of that is overstated nostalgia?

NANCY FONER: I get this all the time: “Oh, but then they all spoke English and today they don’t speak English.” Well, immigrants in the past -- and here we’re talking about immigrants, not their American-born children -- didn’t always learn English so well. It was their children who did, just as children today are learning English.

There is study after study that shows that virtually all of the children of immigrants born in the US know English. That doesn’t mean they don’t also know their home-country language, particularly the children of Latino and Hispanic immigrants. Many of them are bilingual. But by the third generation, more than 75 percent of Mexicans are English dominant. So there is a move to English just as there was in the past.

In terms of assimilation, the children are American. They are becoming a different type of American than the second generation in the past, partly because America is different. One difference from the past, and this is raised a lot, is that in the mid-1920s, after restrictive legislation, immigration from eastern and southern Europe was severely curtailed, so you didn’t have new immigrants coming into the community. Today that’s quite different. You have constant inflows of new immigrants moving into existing communities. First of all, that gives these communities a different flavor. It also may mean that people hold onto aspects of home country cultures for longer than in the past.

JOAN DECAMP: My understanding though is that in past immigrations, as much as 50 percent of the population returned, and didn't make it here.

NANCY FONER: In New York 100 years ago, we're mostly talking about Jews and Italians. The Jews pretty much came to stay. They were fleeing oppression, pogroms, anti-Semitism in Europe, and they came here, and they weren't going back.

Italians were birds of passage. For every ten Italians who came, five returned. Some came back again, but some didn't. Among all immigrant groups in the US, there was a much higher rate of return than there is today. In fact, that return rate inflamed public opinion. There was concern that immigrants were looting America, that they weren't setting their roots here. They were sending their money back, they were going back, and they weren't becoming American.

Illegal immigration was not an issue 100 years ago for European immigrants, and that's simply because there were no immigration quotas [and] no visas needed.

Let me say one thing about the undocumented. Illegal immigration was not an issue 100 years ago for European immigrants, and that's simply because there were no immigration quotas, no visas needed, and really no such thing as illegal immigration among Europeans. After legislation passed at the turn of the century, if you didn't get through Ellis Island, the steam ship companies had to pay your passage back. They had a big interest in making sure that those who got on the boat were healthy and would pass inspection. Most people got through Ellis Island. That is something people often say: well, my relatives came and they weren't illegal. There wasn't such thing; it's a non-comparison.

THE CHILDREN OF IMMIGRANTS

GABRIEL THOMPSON: I was wondering how kids of immigrants are faring today in the city, as opposed to kids of immigrants a generation ago.

NANCY FONER: It's a good question, and a hard question to answer in a way, because there are a number of myths. Most of them pertain to the Jews: they came here, and their kids went to Harvard. Well, it took a little longer than that. It didn't happen right away.

Partly it's the nature of the education system. When Jews and Italians came here 100 years ago, going to high school was very unusual; graduating was even more unusual. There were two city colleges that were free, and a tiny number of students went there. You didn't really need a lot of education to get ahead, and there were very high dropout rates, particularly among Italians.

The second generation did a little better, and the third generation did even better. It took a while.

Today, how are the children of immigrants doing in the schools? Well, it varies by group. The children who have parents who come from middle class backgrounds, not surprisingly, do better than those whose parents have less than a high school education. Social scientists are just beginning to study how children of immigrants are doing. Studies are showing that children of immigrants generally do better than their parents in terms of education and occupation.

GABRIEL THOMPSON: The Mexicans I work with, a lot of their kids that grew up here, almost all of them dropped out of high school. There's a lot of tension among parents that went from third grade right into the fields that think their kids are lazy for not going to school. But their schools are awful.

NANCY FONER: Nationally, the children of Mexican immigrants have a very high dropout rate from high school. First let me say that a significant minority is going to college, even though their college completion rate is low. So a substantial fraction is prepared to go into white-collar jobs. They do have a higher high school dropout rate than native blacks or whites. What's interesting, and this is nationally, is that second-generation Mexican high school dropouts have lower incarceration rates than native blacks, and higher labor force participation rates.

For the Mexicans in New York, it's a little early to tell how their children are doing, because they've just started coming in large numbers in the 1990s.

U.S. vs. EUROPEAN IMMIGRATION

JERRY SILVER: What are you thinking of for your next book?

NANCY FONER: My next project -- the project that I’m actually working on -- is comparing immigration in the U.S. and Europe. It’s interesting how until recently, immigration wasn’t such a contentious topic in this country. And when it is a topic of debate here it’s focused very much on undocumented immigration. This discussion hasn’t been about cutting back the number of legal immigrants. In Europe, immigration is a tremendously contentious topic and the issue is focused around integration and around Muslims. And of course one thing about the United States …is that most immigrants who come to the United States are Christian. Religion is not as much an issue here when it comes to immigrants whereas in Europe, the issue, the really hot button issue, is the fact that immigrants coming in are heavily Muslim and there’s a tremendous amount of antipathy to their religion and their cultural practices.

When immigration is a topic of debate in the United States it’s focused very much on undocumented immigration. This discussion hasn’t been about cutting back the number of legal immigrants.

Among the second generation, given the nature of European economies, which are more highly regulated than the American economy, there is a problem of jobs. There is high unemployment among the second generation as you all read about in stories about the riots in France. And, a big problem for the second generation in Europe is the inability to get work. In the United States, the second generation has high levels of participating in the labor force. They’re working. Unfortunately, unlike in Europe, they don’t get national health care insurance, they don’t get generous government housing assistance, the welfare state is pretty minimal here.

So there are a whole set of different issues that I'm beginning to look at.

 

Good evening. I have asked for a few minutes of your time to discuss a matter of national importance -- the reform of America's immigration system.

The issue of immigration stirs intense emotions -- and in recent weeks, Americans have seen those emotions on display. On the streets of major cities, crowds have rallied in support of those in our country illegally. At our southern border, others have organized to stop illegal immigrants from coming in. Across the country, Americans are trying to reconcile these contrasting images. And in Washington, the debate over immigration reform has reached a time of decision. Tonight, I will make it clear where I stand, and where I want to lead our country on this vital issue.

We must begin by recognizing the problems with our immigration system.

For decades, the United States has not been in complete control of its borders. As a result, many who want to work in our economy have been able to sneak across our border -- and millions have stayed.

Once here, illegal immigrants live in the shadows of our society. Many use forged documents to get jobs, and that makes it difficult for employers to verify that the workers they hire are legal. Illegal immigration puts pressure on public schools and hospitals...strains state and local budgets...and brings crime to our communities. These are real problems, yet we must remember that the vast majority of illegal immigrants are decent people who work hard, support their families, practice their faith, and lead responsible lives. They are a part of American life -- but they are beyond the reach and protection of American law.

We are a Nation of laws, and we must enforce our laws. We are also a Nation of immigrants, and we must uphold that tradition, which has strengthened our country in so many ways. These are not contradictory goals -- America can be a lawful society and a welcoming society at the same time. We will fix the problems created by illegal immigration, and we will deliver a system that is secure, orderly, and fair. So I support comprehensive immigration reform that will accomplish five clear objectives.

First, the United States must secure its borders. This is a basic responsibility of a sovereign Nation. It is also an urgent requirement of our national security. Our objective is straightforward: The border should be open to trade and lawful immigration -- and shut to illegal immigrants, as well as criminals, drug dealers, and terrorists.

I was the governor of a state that has a twelve-hundred mile border with Mexico. So I know how difficult it is to enforce the border, and how important it is. Since I became President, we have increased funding for border security by 66 percent, and expanded the Border Patrol from about 9,000 to 12,000 agents. The men and women of our Border Patrol are doing a fine job in difficult circumstances - and over the past five years, we have apprehended and sent home about six million people entering America illegally.

Despite this progress, we do not yet have full control of the border, and I am determined to change that. Tonight I am calling on Congress to provide funding for dramatic improvements in manpower and technology at the border. By the end of 2008, we will increase the number of Border Patrol officers by an additional 6,000. When these new agents are deployed, we will have more than doubled the size of the Border Patrol during my Presidency.

At the same time, we are launching the most technologically advanced border security initiative in American history. We will construct high-tech fences in urban corridors, and build new patrol roads and barriers in rural areas. We will employ motion sensors...infrared cameras...and unmanned aerial vehicles to prevent illegal crossings.

America has the best technology in the world -- and we will ensure that the Border Patrol has the technology they need to do their job and secure our border.

Training thousands of new Border Patrol agents and bringing the most advanced technology to the border will take time. Yet the need to secure our border is urgent. So I am announcing several immediate steps to strengthen border enforcement during this period of transition:

One way to help during this transition is to use the National Guard. So in coordination with governors, up to 6,000 Guard members will be deployed to our southern border. The Border Patrol will remain in the lead. The Guard will assist the Border Patrol by operating surveillance systems ... analyzing intelligence ... installing fences and vehicle barriers ... building patrol roads ... and providing training. Guard units will not be involved in direct law enforcement activities -- that duty will be done by the Border Patrol. This initial commitment of Guard members would last for a period of one year. After that, the number of Guard forces will be reduced as new Border Patrol agents and new technologies come online. It is important for Americans to know that we have enough Guard forces to win the war on terror, respond to natural disasters, and help secure our border.

The United States is not going to militarize the southern border. Mexico is our neighbor, and our friend. We will continue to work cooperatively to improve security on both sides of the border ... to confront common problems like drug trafficking and crime ... and to reduce illegal immigration.

Another way to help during this period of transition is through state and local law enforcement in our border communities. So we will increase federal funding for state and local authorities assisting the Border Patrol on targeted enforcement missions. And we will give state and local authorities the specialized training they need to help federal officers apprehend and detain illegal immigrants. State and local law enforcement officials are an important resource - and they are part of our strategy to secure our border communities.

The steps I have outlined will improve our ability to catch people entering our country illegally. At the same time, we must ensure that every illegal immigrant we catch crossing our southern border is returned home. More than 85 percent of the illegal immigrants we catch crossing the southern border are Mexicans, and most are sent back home within 24 hours. But when we catch illegal immigrants from other countries, it is not as easy to send them home. For many years, the government did not have enough space in our detention facilities to hold them while the legal process unfolded. So most were released back into our society and asked to return for a court date. When the date arrived, the vast majority did not show up. This practice, called "catch and release," is unacceptable -- and we will end it.

We are taking several important steps to meet this goal. We have expanded the number of beds in our detention facilities, and we will continue to add more. We have expedited the legal process to cut the average deportation time. And we are making it clear to foreign governments that they must accept back their citizens who violate our immigration laws. As a result of these actions, we have ended "catch and release" for illegal immigrants from some countries. And I will ask Congress for additional funding and legal authority, so we can end "catch and release" at the southern border once and for all. When people know that they will be caught and sent home if they enter our country illegally, they will be less likely to try to sneak in.

Second, to secure our border, we must create a temporary worker program. The reality is that there are many people on the other side of our border who will do anything to come to America to work and build a better life. They walk across miles of desert in the summer heat, or hide in the back of 18-wheelers to reach our country. This creates enormous pressure on our border that walls and patrols alone will not stop. To secure the border effectively, we must reduce the numbers of people trying to sneak across.

Therefore, I support a temporary worker program that would create a legal path for foreign workers to enter our country in an orderly way, for a limited period of time. This program would match willing foreign workers with willing American employers for jobs Americans are not doing. Every worker who applies for the program would be required to pass criminal background checks. And temporary workers must return to their home country at the conclusion of their stay.

A temporary worker program would meet the needs of our economy, and it would give honest immigrants a way to provide for their families while respecting the law. A temporary worker program would reduce the appeal of human smugglers -- and make it less likely that people would risk their lives to cross the border. It would ease the financial burden on state and local governments, by replacing illegal workers with lawful taxpayers. And above all, a temporary worker program would add to our security by making certain we know who is in our country and why they are here.

Third, we need to hold employers to account for the workers they hire. It is against the law to hire someone who is in this country illegally.

Yet businesses often cannot verify the legal status of their employees, because of the widespread problem of document fraud. Therefore, comprehensive immigration reform must include a better system for verifying documents and work eligibility. A key part of that system should be a new identification card for every legal foreign worker.

This card should use biometric technology, such as digital fingerprints, to make it tamper-proof. A tamper-proof card would help us enforce the law - and leave employers with no excuse for violating it. And by making it harder for illegal immigrants to find work in our country, we would discourage people from crossing the border illegally in the first place.

Fourth, we must face the reality that millions of illegal immigrants are already here. They should not be given an automatic path to citizenship. This is amnesty, and I oppose it. Amnesty would be unfair to those who are here lawfully -- and it would invite further waves of illegal immigration.

Some in this country argue that the solution is to deport every illegal immigrant -- and that any proposal short of this amounts to amnesty. I disagree. It is neither wise nor realistic to round up millions of people, many with deep roots in the United States, and send them across the border. There is a rational middle ground between granting an automatic path to citizenship for every illegal immigrant, and a program of mass deportation. That middle ground recognizes that there are differences between an illegal immigrant who crossed the border recently -- and someone who has worked here for many years, and has a home, a family, and an otherwise clean record. I believe that illegal immigrants who have roots in our country and want to stay should have to pay a meaningful penalty for breaking the law...to pay their taxes...to learn English...and to work in a job for a number of years. People who meet these conditions should be able to apply for citizenship -- but approval would not be automatic, and they will have to wait in line behind those who played by the rules and followed the law. What I have just described is not amnesty -- it is a way for those who have broken the law to pay their debt to society, and demonstrate the character that makes a good citizen.

Fifth, we must honor the great American tradition of the melting pot, which has made us one Nation out of many peoples. The success of our country depends upon helping newcomers assimilate into our society, and embrace our common identity as Americans. Americans are bound together by our shared ideals, an appreciation of our history, respect for the flag we fly, and an ability to speak and write the English language. English is also the key to unlocking the opportunity of America.

English allows newcomers to go from picking crops to opening a grocery...from cleaning offices to running offices ... from a life of low-paying jobs to a diploma, a career, and a home of their own. When immigrants assimilate and advance in our society, they realize their dreams...they renew our spirit...and they add to the unity of America.

Tonight, I want to speak directly to Members of the House and the Senate: An immigration reform bill needs to be comprehensive, because all elements of this problem must be addressed together - or none of them will be solved at all. The House has passed an immigration bill.

The Senate should act by the end of this month -- so we can work out the differences between the two bills, and Congress can pass a comprehensive bill for me to sign into law.

America needs to conduct this debate on immigration in a reasoned and respectful tone. Feelings run deep on this issue -- and as we work it out, all of us need to keep some things in mind. We cannot build a unified country by inciting people to anger, or playing on anyone's fears, or exploiting the issue of immigration for political gain. We must always remember that real lives will be affected by our debates and decisions, and that every human being has dignity and value no matter what their citizenship papers say.

I know many of you listening tonight have a parent or a grandparent who came here from another country with dreams of a better life. You know what freedom meant to them, and you know that America is a more hopeful country because of their hard work and sacrifice. As President, I have had the opportunity to meet people of many backgrounds, and hear what America means to them. On a visit to Bethesda Naval Hospital, Laura and I met a wounded Marine named Guadalupe Denogean. Master Gunnery Sergeant Denogean came to the United States from Mexico when he was a boy. He spent his summers picking crops with his family, and then he volunteered for the United States Marine Corps as soon as he was able.

During the liberation of Iraq, Master Gunnery Sergeant Denogean was seriously injured. When asked if he had any requests, he made two -- a promotion for the corporal who helped rescue him...and the chance to become an American citizen. And when this brave Marine raised his right hand, and swore an oath to become a citizen of the country he had defended for more than 26 years, I was honored to stand at his side.

We will always be proud to welcome people like Guadalupe Denogean as fellow Americans. Our new immigrants are just what they have always been -- people willing to risk everything for the dream of freedom. And America remains what she has always been -- the great hope on the horizon...an open door to the future...a blessed and promised land. We honor the heritage of all who come here, no matter where they are from, because we trust in our country's genius for making us all Americans -- one Nation under God. Thank you, and good night.

 

Immigrants in New York City and across the nation took to the streets, probably for the first time in history, to voice their demand for reform of immigration policy. What started as a protest against a bill -- that would make felons out of those who are illegally living or working in the country -- turned out to be a series of massive marches for immigrant rights.

“The issue of immigration stirs intense emotions and in recent weeks, Americans have seen those emotions on display, “ President George W. Bush said in his speech to the nation last week. “On the streets of major cities, crowds have rallied in support of those in our country illegally. At our southern border, others have organized to stop illegal immigrants from coming in. Across the country, Americans are trying to reconcile these contrasting images.”

In New York City, there may be more images of immigrants than anywhere else in the nation. Check out some of them, and the stories they tell, in our slide show on New York City's immigrants.

 

It won't be in time for June weddings, but the New York State Court of Appeals, the state's highest court, will hear a group of cases on May 31 arguing that the state’s refusal to let same-sex couples obtain marriage licenses violates the state constitution. A decision is expected by summer, but that might not be the end of it.

The issue of same-sex marriage got lots of attention early last year when Manhattan-based Justice Doris Ling-Cohan ordered the city to start issuing licenses to gay and lesbian couples who wished to marry. At that time in February 2005, facing uncertain reelection prospects, Mayor Michael Bloomberg tried to have it both ways, appealing the decision to fend off conservative attacks and simultaneously announcing that he was now in favor of gay people being able to marry to try to appease liberals.

The Bloomberg administration was successful in having Ling-Cohan’s decision overturned by the state Appellate Division, a mid-level court. Three other same-sex marriage cases were brought elsewhere in the state and in each case Attorney General Eliot Spitzer defended state law even though he is an ostensible supporter of the right of gay people to marry. In 2004, Spitzer issued a legal opinion that while New York law does not permit same-sex couples to marry, it must recognize legal same-sex marriages performed elsewhere.

Thus, there are many legally married same-sex couples living in New York who obtained their licenses in Canada. The federal government does not recognize them as married because of the 1996 federal Defense of Marriage Act that then Representative Chuck Schumer and First Lady Hillary Clinton -- now the two U.S. Senators from New York -- supported. It was signed by President Bill Clinton and forbids the United States from giving any federal recognition to a same-sex marriage. While it allows the states to license them (it looked as if Hawaii was about to at the time, but it did not), it also allows the states to refuse recognition to same-sex marriages performed elsewhere.

The vast majority of states have laws limiting marriage to man-woman couples, many of them passed after 1996. When Massachusetts opened marriage to gay couples by a 4-3 order of their Supreme Judicial Court in 2004, many states went further by passing state constitutional amendments banning same-sex marriage and in many cases any legal recognition of gay couples such as a domestic partnership or civil union (which are offered to the people of Vermont and Connecticut.) Even Massachusetts could close marriage to gay couples if a pending state constitutional amendment gets on the ballot in 2008.

New York City does recognize gay couples legally married elsewhere. So do many divisions of the state including the pension system, thanks to a ruling by State Comptroller Alan Hevesi. The State Division of Taxation and Finance balked, however, issuing a ruling in April that legally married same-sex couples must file as unmarried in New York. In Massachusetts, gay married couples must file their state returns as married and their federal returns as unmarried. To figure their state tax, however, they must do a dummy federal form as if they were married because state tax is derived from federal forms. Whew!

Constitutional Amendment?

President George W. Bush is in favor of a federal constitutional amendment that would ban same-sex marriage and forbid courts from granting marriage-like rights to same-sex couples. It needed a two-thirds vote in both houses of Congress and didn’t get anywhere near that in 2004. It is being brought back to the United States Senate and House in early June where it might pick up a few more votes, but is mainly being revived not because it will pass but because it can be used as a wedge issue by the Republicans in the fall elections as they try to stem the slide of their party and standard bearer in the polls over the last year. It is opposed by Senators Schumer and Clinton who, while they still do not support the right of gay people to marry, say they support civil unions that would grant comparable rights to gay couples.

If a federal judge were to rule that the Defense of Marriage Act is unconstitutional, that might trigger a two-thirds vote for the Federal Marriage Amendment which would then need ratification by three-fourths of the states--very possible given the actions of state legislatures on the issue to date.

New York – Neither For Nor Against...Yet

New York is one of a handful of states that has not taken any legislative action for or against same-sex marriage though bills are pending in Albany both to ban it and allow it. The legislature has passed some bills over the past year granting incremental rights to same-sex partners including control of remains when one partner dies, but nothing that has caused much controversy.

The New York Court of Appeals can do more than either strike down or uphold the state law that, despite the absence of any explicit mention of gender, has been interpreted thus far to restrict marriage to heterosexual couples. It could also rule that equal protection requires the state to give equal rights to gay couples and leave it to the legislature to fashion the solution. That’s what the Vermont high court did in 2000 and Vermont’s Governor Howard Dean and the legislature came up with the first statewide civil union scheme, granting marriage in all but name to gay couples.

Predicting the outcome of the case is difficult, but was made more so in early May by the announcement that Associate Judge Albert Rosenblatt recused himself from it without explanation. If the remaining judges deadlock in a 3-3 tie, it might have to be re-argued, a court spokesman told the Albany Times Union, with a judge from a lower court selected by the chief judge, Judith Kaye.

The Empire State Pride Agenda, the statewide lesbian and gay lobby group, was up in Albany on May 8 pressing legislators for the first time to go on the record in favor of same-sex marriage rights.

New York’s judges may be influenced by the outcomes of state high court decisions pending in Washington State and especially neighboring New Jersey, both of which are expected to come down in favor of the gay plaintiffs.

Arguing for the gay plaintiffs in New York are the American Civil Liberties Union, the New York Civil Liberties Union, and the Lambda Legal Defense and Education Fund along with some private firms.

It is not certain that the Court of Appeals will rule in favor of the right of gay couples to marry -- the majority of justices, after all, have been appointed by a Republican governor – but if it does, that will probably be the end of it. Speaker Sheldon Silver, while no proponent of same-sex marriage, has assured colleagues that his Assembly will not pass a state Defense of Marriage Act or constitutional amendment against it.Assembly Member Dick Gottfried, the chief sponsor of the state Equal Marriage Rights bill that would open the institution to gay couples, believes that the state legislature would opt for marriage over civil unions because “in New York, the rejection of separate but equal is well rooted.”

If on the other hand the court rules against the plaintiffs, the ball would also be in the legislature’s court and the pressure would build to act just as they did when the court struck down Health Department smoking regulations. In that case, the legislature passed sweeping anti-smoking laws within nine months. While Gottfried does not necessarily believe the legislature would act that fast on the gay marriage issue, he said it would act sooner rather than later, especially if Eliot Spitzer is elected governor, committed as he is to introducing his own bill opening marriage to gay couples.

Spitzer’s Positions

Spitzer was a featured speaker at an Albany rally for same-sex marriage on May 8. Later in the month, his Senior Counsel, Peter H. Schiff, will be in court arguing that same-sex couples do not and should not have the right to marry under the current law. The city’s Law Department is also arguing against same-sex marriage in the case.

If the opponents of same-sex marriage were worrying that Spitzer and Bloomberg would throw the case against same-sex marriage, they have only to read their briefs. The Attorney General argues that the refusal of the state to issue licenses to the gay couples does not violate the due process or equal protection clauses of the New York State constitution nor is marriage to a partner of the same-sex a “fundamental right.” The exclusion, the state argues, is “rationally based to the state’s legislative interests.”

Spitzer argues that the “state has a legitimate interest in channeling opposite-sex relationships into marriage” and in “uniformity among the states regarding what relationships will be subject to the legal obligations and protections of marriage.” The city makes similar arguments.

While Spitzer argues that he is obligated to defend the state’s marriage statute despite his personal beliefs, Attorney General Robert Abrams did not defend New York’s anti-sodomy statute when it was struck down by the Court of Appeals in 1980. Spitzer said he will introduce legislation to legalize same-sex marriage if he prevails against it in court.

Other Gubernatorial Candidates’ Positions

Spitzer’s Democratic opponent for his party’s nomination for governor, Nassau County Executive Tom Suozzi, opposes same-sex marriage and favors civil unions for gay couples, though he was blindsided when the Democrat-controlled legislature in Nassau defeated a domestic partner registry in April.

All of Spitzer’s potential Republican opponents oppose same-sex marriage, including former Massachusetts Gov. Bill Weld who once spoke at wedding for a former aide and his husband. Weld flip-flopped to curry favor with the state Conservative Party, which is adamantly opposed to legal recognition of gay relationships and has since endorsed Assembly Member John Faso for governor.

May 31st Hearing Will Be Webcast

Fourteen religious and civil rights groups filed friend-of-the-court briefsin April supporting the plaintiffs in the cases going before the Court of Appeals on May 31. Among the most notable are the NAACP Legal Defense and Education Fund, the American Psychiatric Association, the National Organization for Women, the Child Welfare Fund and the Association of the Bar of the City of New York.

Lambda Legal Defense, whose attorney Susan Sommer, will be among those arguing for the plaintiffs in the case, will surely be stressing what was ruled by Justice Doris Ling-Cohan in February 2005: “Similar to opposite-sex couples, same-sex couples are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing. The recognition that this fundamental right applies equally to same-sex couples cannot legitimately be said to harm anyone.”

There has been such interest in the May 31 Court of Appeals hearing that the court will allow it to be webcast at 2 PM that day and subsequently archived. Go to the Court site and click on the webcast in the right hand column.

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

As negotiations continue over New York City’s next budget, which begins on July 1, 2006, immigrant advocates are looking closely at the funding given for what is called the Immigrant Opportunities Initiative (or, IOI), which gives money to more than 100 non-profit organizations for two services specifically geared to immigrants -- English classes and legal services.

This is in contrast to the wide array of human services funded by the city that are available to New Yorkers, both immigrants and non-immigrants. In fact, New York City has one of the largest human service systems in the nation.

But the two programs, English for Speakers of Other Languages (ESOL) classes and immigration legal services, are the only ones specifically considered immigrant services at budget time.

English Classes

English classes are in high demand in New York City. According to a 2001 New York Immigration Coalition report entitled, “Eager for English: How and Why New York’s Shortage of English Classes for Immigrants Should Be Addressed,” more than one million New Yorkers would like to improve their English. However, there were only 50,000 English classroom seats available – or only enough to meet five percent of the need. Immigrants with improved English skills can find a better job, obtain greater quality health care, be more involved with their children’s education, and pass the naturalization exam needed to obtain U.S. citizenship.

Legal Services

Immigration legal services ensures that immigrants can successfully gain legal status in the United States and become U.S. citizens. In 2004, 537,151 people became naturalized U.S. citizens. Of those naturalized, the second largest group (66,234 individuals) lived in New York City. In addition, an estimated 1.5 million persons with lawful permanent resident status live in New York City, who can eventually apply for citizenship. Due to constantly changing immigration regulations and the backlog in citizenship applications, good counsel is needed to help one navigate the complex immigration system. Increased availability of free or low-cost legal services is critical to protecting immigrants from exploitation by unregulated immigration consultants (also known as ‘notarios’) who often provide inaccurate information and charge excessive fees. Many immigrants have been denied lawful permanent residency and/or have been deported as a result of the actions of these fraudulent immigration consultants.

Immigrant worker legal services also has been successful in helping immigrant workers address workplace abuse and exploitation they might face, and receive back wages from employers that incur wage-and-hour violations.

City Council Support of Immigrant Services

Recognizing the importance of immigrant services to immigrant New Yorkers, outgoing City Council Speaker Peter Vallone Sr. created what was then called the Immigrant Services Initiative in 2001. The initiative, first funded in the 2002 fiscal year budget at $2.5 million, provided funding to 43 non-profit organizations for English classes and immigration legal services. It has remained a priority for the City Council, which has funded it every year since.

Although funding levels decreased in subsequent years, it was increased to $9.1 million for the current budget, which ends in June. As a result, the non-profit agencies that received funding saw their average allocation increase from $50,000 to $75,000, and the total number of groups receiving these funds rose to nearly 130.

Mayor’s Support of Immigrant Services

Aside from the $9.1 million in Immigrant Opportunities Initiative funding, most of the city’s immigrant services are funded with Federal Community Services Block Grant (CSBG) & Workforce Investment Act (WIA) dollars to support $11.3 million in programs. The Department of Youth & Community Development funds English classes, adult basic education classes, immigration legal services, immigrant youth and immigrant women programs with these monies. However, President George W. Bush has completely slashed all Community Services Block Grant funding in his Fiscal Year 2007 budget proposal.

Permanent Funding for Immigrant Services

As with other City Council initiatives and budget priorities, Mayor Michael Bloomberg did not include funding for the Immigrant Opportunities Initiative in his preliminary budget for the coming fiscal year. Unfortunately, this initiative is subject to the annual “budget dance” where the mayor ultimately agrees with the City Council to restore funding for programs he doesn’t include in his preliminary budget. Critics of the budget dance say that it injects funding uncertainty that is unwelcome to these programs and those that depend on them.

With the funding uncertainty of the Community Services Block Grant, stagnant funding from New York State for immigrant services, and New York City’s large immigrant population, funding by City Hall of immigrant services becomes even more crucial in maintaining a city that welcomes and incorporates newcomers. While NYC is fortunate to have an infrastructure that helps immigrants access services they need, advocates argue that a greater investment is needed to meet the demand for these services.

Advocates would like permanent funding for the Immigrant Opportunities Initiative in the final budget this year, seeing this as investment in a group of people who themselves have invested their energies in creating economic, social, and cultural benefits to our society.

Anthony Ng is the Legislative Advocate at United Neighborhood Houses of New York (UNH), the membership organization of New York City settlement houses and community centers.

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