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the Government than for the rights of the people is eroding the protections of the Bill of Rights, and it is becoming increasingly important that State constitutions and State supreme courts protect those rights so that the people will be protected in the absence of protection by the Federal Supreme Court.

So we think it is terribly important and essential that the strong bill of rights that exists in this draft remain there and be supported. It is only in that context that I bring up our problems with these two particular sections. But we do have a problem with that section, we think, in the drafter's commendable effort to provide this kind of protection from discrimination. Perhaps they haven't thought through completely some of the implications of the broad language that has been used, and particularly the protection against private discrimination can raise some problems because there is a good deal of private discrimination that most of us, I think, consider to be an acceptable thing.

For example, under the section 3 as written, it would appear that an organization like the Gay Men's Chorus would be unconstitutional because it discriminates in its membership based on sexual orientation, or the Women's Democratic National Club, which as I understand it, does not admit men to full membership and would be unconstitutional. College fraternities and sororities would be unlawful. It would be unlawful for an orthodox synagogue to seat men and women separately during prayers as is their custom.

It would be wrong for the Catholic Church to limit the priesthood for males as is, of course, their practice. Because of the prohibition on private discrimination based upon parentage, if I understand it properly, it would be unlawful discrimination for a parent to prefer his or her child as an employee for the summer in a mom and pop 7-Eleven Store on the corner, or for a lawyer to prefer his or her child as his law partner or her law partner in their private practice.

It would be unconstitutional for an insurance company to set life insurance rates or health insurance rates differentially based on the age of the insured which, of course, every insurance company does because your risks of dying are much higher when you are 85 then when you are 25. There are, of course, a great many examples of private discrimination that we disapprove of, and it should be outlawed, but approaching it in this sort of blunderbuss way without any exceptions as a constitutional provision, we think, is too insensitive a way of doing it.

Either the provisions need to be written in a much longer and more detailed way, more or less resembling the current provisions of the D.C. human rights law, or if the committee thinks that is not the way a constitution should read, and I think we agree that is not the way a constitution should read, then the prohibition of those kinds of private discrimination ought to be left to the State legislature to prohibit by statute exactly as they are currently prohibited in the D.C. human rights law. It may be that law needs strengthening and broadening in some respects, which we would support, but we think that is the proper forum for that kind of a debate.

One other comment on that section, and that is even with respect to government discrimination, there are a couple kinds of

government discrimination that are not necessarily bad, and in particular, discrimination based on age and discrimination based on poverty is the word here in the draft. I think we all very strongly support government discrimination based on poverty in the sense that the government helps people who are poor more than it needs to help people who are rich.

Read literally, it seems to me that this phrase might create problems for subsidized low-income housing, for example or other forms of assistance to the poor. I would hate to have even an argument made, even a law suit brought to court that would disrupt those kinds of programs because someone could claim the government isn't giving me the same benefits because I am rich that they are giving to someone who is poor.

Similarly, with respect to age, we don't think there is anything wrong with having a minimum limit for when you can get a license to drive a car or when you can go into a bar and buy a drink. We don't think there is anything wrong with having a senior citizen's discount on the metrobus and metrorail system. Those are examples of government discrimination based on age. Similarly the child labor laws are government discrimination based on age, and I think we would all hate to see them declared unconstitutional. So there again, not just with respect to private, but also public discrimination, there seems to be a narrowness, I think, in this section of the bill of rights and a little delegation of the authority to draft statutes dealing with the subject more particularly to the future State legislature.

Finally, I would add just, again to anticipate your question, one word that you asked both previous witnesses about whether the District can support statehood economically, we really think it is an irrelevant question. It may not be irrelevant here on the Hill. I understand that very well, but our position would be that nobody asked that question when Hawaii was admitted, when Alaska was admitted or when Ohio was admitted. I am sure back at the time when the States that comprised the Northwest Territories were admitted to the Union, and people were still building stockades in the Midwest to keep the Indians out, no one was asking, "Well, are they economically viable?"

The point here is one of simple justice, but I think Mr. Hechinger's answer to that question was a wholly adequate answer. As an independent State, the District would have the ability under the law to raise the money it needed. It could set taxes at whatever level was necessary to meet its budget. It could enact a commuter tax as States and cities around the country have done, and it wouldn't be subject to this sort of congressional veto that now exists on that subject. So that is not something that we think, from a principal point of view, ought to bother the committee or from a practical point of view for that matter.

Thank you.

[The prepared statement of Mr. Spitzer follows:]



on behalf of the


before the

of the


June 11, 1986

Mr. Chairman, my name is Arthur Spitzer, and I am the Legal Director of the American Civil Liberties Union of the National Capital Area, on whose behalf I am testifying today.


The ACLU has for many years been a strong supporter of the movement for statehood for the District of Columbia.


seminal Supreme Court cases that established the constitutional principle of "one person, one vote" were brought by the ACLU more than twenty-five years ago. Under those rulings, congressional apportionments that dilute the value of a

person's vote by even a tiny fraction are considered legally unacceptable. But the value of the vote of a citizen of the

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in congressional elections. We find it shocking and outrageous that, a quarter of a century after the establishment of the

"one person, one vote" principle, citizens of the District of Columbia still have no means of formal participation in the democratic process by which our nation governs itself. Two hundred and thirteen years after American patriots dumped British tea into Boston Harbor to protest taxation without representation, two-thirds of a million American citizens remain taxed but unrepresented by Senators or voting Members of Congress.

The ACLU therefore applauds this committee's activities on behalf of D.C. statehood, and urges the committee to proceed vigorously with its consideration of this important and worthy


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We particularly wish to commend the informal Task Force, operating under the coordination of Johnny Barnes, for its generally excellent suggested amendments to the original draft Constitution. We agree with the basic philosophy that underlay the Task Force's work that the goal of statehood justifies some necessary adjustments to the draft constitution produced by the Statehood Constitutional Convention where the contents of that draft would jeopardize the possibility of congressional support for statehood. We are also in accord with one of the important themes of the Task Force's work, namely that a constitution should not attempt to do the work of a statute rather, it ought to provide a broad framework under which the legislature can adopt more specific statutory provisions.


Consistently with the ACLU's strong support for statehood,

we also have a strong interest in assuring that the Constitution of the State of New Columbia is carefully drafted to protect the civil liberties and civil rights of the citizens of the new state. We are very pleased to be able to say that many of the provisions of the proposed State Constitution are quite excellent in this regard.

In particular, we believe that the following provisions of the draft Bill of Rights (Article I) provide important protection for the rights of individuals beyond what is guaranteed by the United States Constitution, as that document is currently interpreted by the Supreme Court. (I should note that, in our view, most or all of these rights are to be found in the United States Constitution, properly interpreted. However, it is essential that they be protected at the state level as well, since the Supreme Court can no longer be counted on to provide adequate protection for civil rights and civil liberties.):

Section 4, which provides explicit protection for the

right of privacy;

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Section 6, which explicitly constitutionalizes the "exclusionary rule," and prohibits the dilution of that rule with a so-called "good faith exception";

Section 7, which explicitly constitutionalizes the

"Miranda" rights now being whittled down by the Supreme Court,

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