September 2011

by Jeremy Leaming

The NFL, as noted earlier this week by The Huffington Post’s Amanda Terkel, included in its current collective bargaining agreement a clause prohibiting discrimination based on sexual orientation.

The provision states, in part, “There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA [NFL Players Association] because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.”

Terkel notes that there “are no openly gay professional sports players in football, basketball, baseball or hockey,” and that the NFL “has received some criticism” for not participating in a national effort to help LGBT youth who suffer from bullying because of their sexual orientation.

She did note that some NFL players, such as the Baltimore Ravens’ Brendon Ayanbadejo, have spoken in support of LGBT equality.

In an article for The Huffington Post, Ayanbadejo defended marriage quality. First he noted the lameness of the religious-based argument against marriage equality primarily that a divinity does not approve of same-sex marriages. “First and foremost,” Ayanbadejo wrote, “church and state are supposed to be completely separated when it comes to the rule of law in the Unites States. So the religious argument that God meant for only one man and woman to be together has no bearing here!”

He concluded, “Maybe I am a man ahead of my time. However, looking at the former restrictions on human rights in our country starting with slavery, women not being able to vote, blacks being counted as two thirds of a human, segregation, no gays in the military (to list a few) all have gone by the wayside. But now here in 2009 same sex marriages are prohibited. I think we will look back in 10, 20, 30 years and be amazed that gays and lesbians did not have the same rights as everyone else.”  

Maybe the only thing surprising about the NFL’s support of a measure prohibiting discrimination based on sexual orientation is that it took so long for the league to adopt it. This is the professional sports league that in 2002 adopted the Rooney Rule, which requires NFL teams to interview diverse candidates, including at least one African American, for head coaching positions.

In an ACS Issue Brief, Douglas C. Proxmire, a partner at Patton Boggs LLP, noted the positive impact the Rooney Rule has had on diversifying the NFL’s coaching ranks. But Proxmire also wrote that the Rule should be expanded to additional NFL positions, and that other professional sports leagues should also adopt similar policies.

By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.