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Jun 032013

iStockphoto/Thinkstock(WASHINGTON) — The Supreme Court Monday upheld a Maryland law that allows officials to take DNA without a warrant from those who have been arrested, but not convicted of a serious crime.

Justice Anthony Kennedy, for a 5-4 majority, wrote, “the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”

He called the buccal swab to the mouth to obtain DNA a “minor intrusion.”

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Kennedy wrote.

Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito.

Justice Antonin Scalia dissented from the opinion and was joined by Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg.

Scalia said Monday’s decision represents an “incursion” upon the Fourth Amendment’s ban against unreasonable search and seizure.

“Make no mistake about it,” Scalia writes. “As an entirely predictable consequence of today’s decision your DNA can be taken and entered into a national DNA data base if you are ever arrested, rightly or wrongly, and for whatever reason.”

He said that “solving unsolved crimes” is a noble objective but it “occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicion-less law-enforcement searches.”

While all states require DNA from individuals convicted of a felony, the federal government and 26 states also take DNA samples from at least some arrestees.

The case concerns Alonzo Jay King Jr., who claims his constitutional rights were violated when he was arrested in 2009 for assault. At the time of his arrest, pursuant to Maryland’s DNA Collection Act, officials swabbed his cheek and collected his DNA without a warrant.

His 2009 sample was later matched in a state database to DNA from a 2003 rape case. It was a cold case involving a 53-year-old female victim in Maryland. Based on the new evidence, King was eventually charged with the 2003 rape and robbery. He is serving a life sentence.

Lawyers for King appealed the decision, arguing that taking the warrantless DNA from someone who has been arrested but not convicted of a serious crime violates the Fourth Amendment’s ban on unreasonable search and seizure. The Court of Appeals of Maryland ruled in King’s favor.

During arguments in February, Justice Alito said of the case, “I think this is perhaps the most important criminal procedure case that this Court has heard in decades.”

Kannon K. Shanmugam, a lawyer for King, argued that the government has no right to forego ordinary rules requiring a warrant and probable cause before forcing an arrestee to submit to a search involving a physical intrusion into the body for investigatory purposes.

“Our DNA is our blueprint: an individual’s DNA contains not only deeply personal information about the subject’s medical history and genetic conditions, but also information that can be used to make predictions about a host of physical an behavioral characteristics, ranging from a subject’s age, ethnicity, and intelligence to the subject’s propensity for violence and addiction,” Shanmugam wrote in court papers.

But lawyers for the state of Maryland defend the law. In court, Katherine Winfree, chief deputy attorney general in Baltimore, pointed out that since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been “225 matches, 75 prosecutions and 42 convictions.”

The purpose of the law was to identify people “and to use the information to make bail determinations for people who are validly in their custody,” she said.

The U.S. government argued in favor of the law, saying officials are forbidden to look at the DNA for anything except identification information.

Copyright 2013 ABC News Radio

Apr 182013

Paul Morigi/Getty Images(WASHINGTON) — Supreme Court Justice Antonin Scalia showed a lighter side while joking with students from the University of California Washington Center.

At the event Monday, held to publicize his new book, Reading Law: The Interpretation of Legal Texts, Scalia answered students’ questions on a range of issues and offered insight into the perspective from the other side of the bench.

Scalia said most times justices ask questions in order to make colleagues understand which way they are leaning a certain way on a case.

“Sometimes I ask questions just because I’m bored, just to stay awake,” he joked. “Very often the questioning is done to convey your point of view to your colleagues.”

Scalia also touched on topics as varied as his viewpoint on the Constitution and opposition of Section 5 of the 1965 Voting Rights Act. The section requires that states and regions that have previously discriminated against minority voters such as African Americans gain federal approval when they want to change voting regulations in their states.

Scalia called the act one of “racial preferment,” which would continue to be reauthorized by Congress unless the high court took action.

Congress last reauthorized the act for another 25 years in 2006. The Supreme Court decision on the act’s constitutionality is expected in late June.

In February, when the act was last brought before the Supreme Court, Scalia had said Congressional support was based in part on what he called “racial entitlement.”

“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about,” Scalia said. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Scalia shot down a question on homosexuality when a student asked about the interpretation of the constitution’s 14th Amendment regarding same-sex relationships, something the student suggested was a “new technical phenomena.”

“There was homosexuality in the time of the 14th Amendment. Every state had laws against it. It was criminal in every state,” he said. “I don’t consider homosexuality a new technical phenomena…people didn’t come forward and demand a constitutional right to homosexual marriage before (in the time of the 14th Amendment).”

Scalia agreed when questioned by a student as to whether fellow Justice Clarence Thomas pushed him to the right when Thomas came on to the court in 1991 or if it was the other way around.

“What had happened was I had followed Clarence’s lead, he knew that,” he said. “Clarence is his own man, he’s not going to follow me just to follow me. You know he’s a very stubborn man too, which is why he won’t ask questions. The more the press is on him for not asking questions the less likely he is to ask questions.”

Thomas broke his silence for the first time in seven years earlier this year when he made a joke during an oral argument.

Copyright 2013 ABC News Radio

Mar 272013

Chris Maddaloni/CQ Roll Call(WASHINGTON) — After attending oral arguments at the Supreme Court Wednesday to debate the constitutionality of the Defense of Marriage Act, House Minority Leader Nancy Pelosi, one of the most outspoken advocates in Congress for marriage equality, said she believes that when the justices announce their ruling in a couple of months, they will strike down the controversial law commonly known as DOMA.

“On the basis of what I heard, the questions of the justices, the response of the participants, I’m very optimistic that DOMA will be struck down,” said Pelosi, D-Calif. “Just being in the room … this [issue] is as big as our country, as big as our Constitution, as big as our being a beacon of equal protection to the world.”

While Pelosi and many of her Democratic colleagues have openly embraced gay marriage over the years, House Republicans have resisted the Obama administration’s unwillingness to enforce DOMA, which defines marriage as a union between one man and one woman and was signed into law by President Bill Clinton in 1996.

House Speaker John Boehner, R-Ohio, has persistently insisted that as long as the Obama administration refuses to enforce DOMA, the Bipartisan Legal Advisory Group, which is comprised of three Republicans and two Democrats, will defend the law.

“A law’s constitutionality is determined by the courts – not by the Department of Justice,” Boehner spokesman Michael Steel wrote in a statement Wednesday. “As long as the Obama administration refuses to exercise its responsibility, we will.”

On Wednesday, Pelosi said she believes Congress and the nation have evolved since DOMA was first signed into law and she predicted that opposition to gay marriage is “not a model for the future.”

“We’re at a different place, and it’s a generational change as well,” Pelosi said. “Times can blind, and whatever the public mood was on this subject at the time, it also created some ignorance on the subject. And that ignorance is fading now.”

“Make America more American by ending discrimination by overturning the ill-conceived DOMA,” she added.

Copyright 2013 ABC News Radio

Mar 242013

Jupiterimages/Thinkstock(WASHINGTON) — The Supreme Court is set to hear arguments from both sides of the same sex marriage debate this week.

At issue are California’s Proposition 8 and the Defense of Marriage Act. Both prohibit same sex marriage, but public opinion seems to increasingly be in favor of gay marriage.

The big question is whether the Court will rule such bans unconstitutional nationwide or if it will leave the issue up to individual states to decide. Opponents of same sex marriage are against the issue being resolved in such a top-down manner by the courts rather than through elections, but most experts seem to think that the Court likely won’t go that far in its ruling.

“They see the wave developing in support of gay marriage. We’ve seen that develop now majority support in the country. It’s moving very, very quickly,” said ABC Chief Political Correspondent George Stephanopoulos.

“They’re not gonna wanna risk looking anachronistic …What they’re likely to do is create the space for states to make their own decisions.”

California State Attorney General Kamila Harris believes that same sex marriage is about equality. “The majority of Americans believe it, the majority of Californians believe it, the majority of Catholics in this country believe it,” Harris said on CNN’s State of the Union.

Austin Nimocks of the Alliance Defending Freedom disagrees with Harris’s assessment.

“We’re talking about Californians going to the ballot box twice in a nine year period and voting to uphold marriage between one man and one woman,” he said on State of the Union. “That’s our most fundamental right in this country is the right to vote and the right to participate in the political process.

The proponents of same sex marriage note that protecting the rights of minorities has traditionally been done by the courts rather through elections.

Evan Wolfson, President of the advocacy organization Freedom to Marry compared the current marriage debate to another similar case in the 1960′s during an appearance on CBS’s Face the Nation.  

“The Court ruled in favor of the freedom to marry and 70 percent of the American people at that time were against inter-racial marriage. Fortunately, in America we don’t put everything up to a vote.”

Copyright 2013 ABC News Radio

Mar 072013

Joe Scarnici/Getty Images for TRANS4M(WASHINGTON) — Former President Bill Clinton is adding his name to the list of those who say the Supreme Court should overturn the federal law restricting marriage to one man and one woman. Seventeen years after he signed the law that did just that, Bill Clinton says the Defense of Marriage Act, or DOMA, should be thrown out.

Clinton writes Thursday in a Washington Post op-ed that 1996 was “a very different time.”   

He explains:

“In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage ‘would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.’ It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.”

Today, gays and lesbians can marry in nine states and Washington, D.C.  To deprive them of rights under federal law, Clinton says, is discriminatory and “incompatible with our Constitution.”

The Supreme Court will hear arguments on DOMA, and California’s Proposition 8, later this month.

Copyright 2013 ABC News Radio