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Guild Notes ▪ Summer/Fall 2009Keeping military recruiters away from childrenby Daniel MayfieldIn November 2008 voters in Arcata and Eureka Californiaapproved identical ballot initiatives restricting militaryrecruiters’ contact with youth under the age of 18. In response,the Attorney General of the United States sued both cities onbehalf of the Department of Defense. This spring, without evenhearing oral argument, the U.S. District Court upheld the lawsuitand granted a permanent injunction against the two cities.The federal government brought suit one month later, assertingthat the initiatives subverted its right to raise an army.It also argued that the voter-approved restrictions on thecontact between military recruiters and minors were illegalbecause they “purport to authorize the cities to directly regulatethe activities of the federal government.” The increasedrestrictions are illegal, the government claimed, because theUnited States has greater authority than any city under ArticleIV, Section 2 of the Constitution, more commonly referred toas the Supremacy Clause.The cities argued that the issue was not as simple as theU.S. attorney asserted. Guild attorneys Dennis Cunninghamrepresented the City of Eureka, and Michael Sorgen assistedthe attorneys for the City of Arcata, Minami & Tamaki.Sharon Adams represented the initiative proponents andsought to intervene in the case. Defendants responded tothe government’s claims by arguing that the cities had theright—indeed the duty—to protect their citizens, noting thatthe cities clearly had the right to protect young people fromother harmful influences and that the ordinance only affectedpeople under the age of 18.The cities and the voters contended that parents shouldhave greater control over access to their children than themilitary, stating in part:“The very statutes which Plaintiff claims preempts thelocal ordinances here openly acknowledge the right of parentsand local authorities to limit military recruiter access tostudents ... Thus, Congress placed parental rights above theinterests of military recruiters.”However, the Court ignored this argument entirely andbased its decision on the Supremacy Clause.Defendants also argued that parents should have greaterauthority over the lives of their children than the federalgovernment. They noted that neither ordinance prohibitedmilitary recruiting completely. Instead the recruiters wereconfined (in Arcata and Eureka) to talking to those peoplewho were of voting age. The U.S. government disagreed withthis assertion on the grounds that it is unconstitutional to givelocal families an authority reserved for the state.The defendants also argued that the Supremacy Clauseis not violated since that Clause gives equal weight to treatiessigned by the U.S. The U.S. is a signatory to the “OptionalProtocol” to the Conventions of the Rights of the Child. TheProtocol specifically prohibits military recruiting of youthunder age 18. The U.S. signed with a reservation, prohibitingmilitary recruitment of youth under age 17.Despite these already existing restrictions, military recruitershave a history of targeting youth. Recruiters are encouragedin their own training manuals to contact minors. Programs suchas the JROTC and the Middle School Cadet Corps are in manyschools and allow contact between minors and the military wellbefore the age of 17. In addition, recruiters are encouraged tobecome volunteer coaches at middle schools and high schoolsso that they can have close, unsupervised contact with youth.Unfortunately, the U.S. District Court ignored alldefendants’ arguments. Judge Armstrong did not allow theproponents to intervene, stating that the Cities adequatelyrepresented their views. Then, she dismissed the Cities’counter-claims, holding that the Cities could not articulate a“particularized injury.” Defendants argued that the proponentmembers could and did state particularized injury, but theCourt ignored this and dismissed the counterclaims. In a similarfashion, the Court simply took the government’s position,without even analyzing U.S. obligation under the OptionalProtocol, or parental rights under the 10th.Other avenues of attack still exist for local control overrecruiters. Other cities are interested in similar initiative measures,which will be drafted to overcome the arguments madeby the U.S. in this case.Sharon Adams notes that current U.S. law is essentiallyin compliance with the Optional Protocol, because both U.S.law and the Optional Protocol discuss “recruiting” of youthage 17 or older. The Cities contended that Congress intendedrecruitment be directed toward youth age 17 or older. Astoundingly,the U.S. attorneys argued that the U.S. militaryrecruiters are not “recruiting” when they are speaking toyouth under 17; they are, the government argued, communicatingwith youth “for the purpose of encouraging their latervoluntary enlistment in the armed forces.”Kathy Gilberd of the Military Law Task Force feels thatthe real issue here is not whether the cities or the voters canwin in the courts, but rather the key issue is the attempt toassert local control over the ability of the U.S. Governmentto recruit youth. “There is no down side to the local controlof recruiters issue,” said Kathy. “We should raise this issuewith the voters, with the schools, and with parents in everypossible way.”The Military Law Task Force is planning a workshop forthe Seattle Convention on these issues. Speakers will addresslocal control as well as working with teachers and schoolboards to limit recruiter access to youth. Finally speakers willaddress how to use the No Child Left Behind Act to build amovement in the schools to cut off recruiter access to names,addresses and dates of birth of high school students. □▪ 10 ▪
National WorkCharges dropped against Prop 8 demonstratorsby Rachel LedermanOn November 4, 2008, Californiavoters passed Prop 8 by a 52% margin,depriving the LGBT community ofthe right to marry. By amending thestate constitution, the ballot measuresuperceded the California SupremeCourt decision last year that had legalizedsame-sex marriage. The NationalCenter for Lesbian Rights, ACLU, andothers immediately filed a lawsuit arguingthat Prop 8 was invalid because theCalifornia Constitution does not permitthe constitutional rights of a minority tobe stripped away by a simple majorityvote.The California Supreme Courtannounced its ruling upholding Prop 8on May 26, 2009. (The Court did refuseto invalidate the more than 18,000 gaymarriages that took place in Californiabetween June 16, 2008 and November4, 2008.) LGBT activists, clergy andothers immediately took to the street,blocking an intersection in front of theSan Francisco State Building, holdinglarge banners that read “SEPARATE ISNOT EQUAL.” The action began with60 people but grew over the course ofthe morning until a total of 211 peoplewere arrested. Organizers stated, “Thisis not a fight for marriage; it is a fightfor civil rights. Within the LGBT community—aswithout—we struggle withracial prejudice, immigrants rights,healthcare, poverty and homelessness,and gender discrimination.”The 211 arrestees were cited fordisobeying the police and blocking traffic,but ultimately, none was charged.Anti-Prop 8 activists arrested after theelection in November had a similarresult.The Bay Area National LawyersGuild Demonstrations Committee hasbeen successful in discouraging the SanFrancisco district attorney from filingcriminal charges against activists fornonviolent civil disobedience, by demandingthat the court appoint counselfor each eligible arrestee, and by consistentlymounting vigorous defenses. Thishas forced the DA to either dischargecases in which large numbers of peoplewere arrested, or to charge them only asinfractions, to which the rights to jurytrial and appointed counsel do not applyProp 8 protestors in San Francisco. Photocourtesy of the San Francisco Sentinel.in California. The infractions are processedthrough traffic court, apparentlyin the hope that the city will be able tocollect fines from the demonstrators.However, in traffic court, Guild lawyershave succeeded in getting thousands ofdemonstrator cases dismissed, usuallywithout the arrestees even having tocome to court. □The NLG website is getting a make-over!!Keep your eye on www.nlg.org to see our new look and great new features like:◦ Easier online payment for duesand convention registration◦ Easier to navigate menu bars◦ Better organization to help you findwhat you are looking for quickly and easily▪ 11 ▪
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