Arquivo da tag: Suprema Corte

“The Lost Year – 1958-1959” – Fechamento de Escolas para evitar negros

The Lost Year

Documentário sobre a reação de bons (?) pais e mães cristãos contra o INSULTO INACEITÁVEL de aceitar que negros americanos frequentassem as mesmas escolas dos seus filhos brancos.
O Documentário conta como se perdeu o ano escolar de 1958-1959 porque os brancos, perseguidos pela decisão da Suprema Corte (Brown vs. Board of Education), se organizaram e, em nome de Deus e da Família, fecharam as escolas em uma comunidade nos EUA:


The “Lost Year” of 1958-59, is less known than the story that preceded it. But the Lost Year is a separate, equally significant historical episode.

During that year, Governor Orval Faubus closed all high schools in Little Rock, locking out 3,665 black and white students from a public education, and locking in almost 200 teachers and administrators to contracts to serve empty classrooms.

Students and citizens were held in limbo. The 10th, 11th and 12th grades were closed. Faubus’ school closing occurred at the beginning of the 1958-59 school year. Several weeks later a referendum was held and Little Rock voters, by a three-to-one margin, supported segregation over complete integration of all schools—the only two options on the ballot.

Faubus and segregationist state legislators created new state laws to further forestall court ordered racial integration of schools decreed in the 1954 Brown vs. Board of Education of Topeka.

For the second time in two years, many in Arkansas tried to assert state’s rights over the authority of federal courts and the power of President Eisenhower. During the Lost Year, Little Rock was further torn by racial conflict, societal disruptions, and political machinations.

Denying an education to all Little Rock high school youth profoundly affected thousands of families as the city ruptured into an even more divided community.

The Students

The students’ stories are compelling. White students from Central High, Hall High, and Little Rock Technical High and black students from Horace Mann High scrambled to find an education.

Fifteen and sixteen year old children had no access to local public education for an entire year. Many were forced to leave the state. Some studied to enter college early. Others boarded busses daily to travel miles for classes in other cities. Parents and siblings coped with separations from their teenage students who moved in with relatives or with friends around the state. Students, themselves, coped with life-changing disruptions from friends, family, and classes.

It was a period unmatched in its peculiarities. Students had no schools to attend, but football continued at all campuses by suggestion of the Governor. The School District briefly experimented with live television teaching on local stations.

A Private School Corporation for whites attempted to rent public school buildings and hire public school teachers, but federal courts restrained their efforts.

Several private schools opened in alternative locations with alternative teachers and enrolled 44% of all the white high school students in Little Rock.

Predictably, class and race were factors in who found schooling and who did not. Ninety three per cent of white students found some form of education that year. White families were better able to find transportation, pay tuition, or make more elaborate arrangements for alternative schooling.

No private education emerged for blacks and fifty percent did no academic work that year. Many found jobs and hoped that schools would open, or joined the military to finish their education. Many of these students never returned to school.

Ironically, the remaining members of the Little Rock Nine, having suffered through the previous year at Central, were also affected. Some left the state for alternative schooling or enrolled in correspondence courses from universities.

[back to top]

The Community

Beyond the students, the community was in chaos. The Little Rock School District Superintendent and members of the School Board changed three times in one calendar year through resignations, appointments, and elections.

State legislators expanded the troubles beyond Little Rock when they passed laws that targeted NAACP members and jeopardized the civil liberties of all teachers and professors.

State employees were intimidated with requirements to list all organizations to which they belonged or to whom they paid dues. For months, the ever changing political upheaval of the community was measured by rising tensions and falling morale in every home of students, parents and teachers.

A Turning Point

Opposing sides worked publicly and behind the scenes to jockey for control of their community. The Capital Citizens Council and the Mothers’ League of Central High represented the segregationist groups.

Few public voices stood for the moderates, but Harry Ashmore, Editor of the Arkansas Gazette, and The Women’s Emergency Committee to Open Our Schools were among the first to have the courage to speak out.

Finally in late spring a turning point came in the Lost Year crisis. At a session of the Little Rock School Board, which had gathered to consider renewing the teachers’ contracts, three of the six member board walked out. These moderates considered this an end to the official business of the meeting, believing that no further action could be taken by the remaining segregationists.

However, the three remaining segregationists on the Board continued the session, and fired forty-four teachers and administrators who were believed to support racial integration. This purge served as a wake-up call to the city.

Moderates formed STOP (Stop This Outrageous Purge) to recall the segregationist school board members to try to regain control of their community and their public schools.

Segregationist opponents formed CROSS (Committee to Retain our Segregated Schools) and attempted to recall the moderates on the school board. In a twenty day campaign, the opposing sides battled for the hearts of the community.

People of Little Rock had to choose between keeping their beloved teachers and administrators, or bowing to the segregationists’ purge. After a year of closed schools and the firing of teachers of both races, the voters of Little Rock narrowly recalled three segregationist School Board members, and the new Board opened schools early for the 1959-60 school year.

Lessons of the Lost Year

The disruptions of the Lost Year have had life-long consequences for former students and teachers, their families and the community of Little Rock. Their stories must be told.

The lessons of the Lost Year, often unknown or little regarded, have much to teach us about public education and a community spirit that challenged segregation. The views of displaced students on race and desegregation were shaped by these events and have become life-longs beliefs.

Perhaps most importantly, the Lost Year illuminates how the community took their schools back on an integrated basis and informs the world that all of Little Rock was not represented by screaming mobs of segregationists at Central High in 1957.




Fonte: The Lost Year 
P.s. Se alguém tiver/achar com legendas, por favor, me diga.



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Arquivado em Democracia, Direito Constitucional, Direitos Humanos, Minorias

Suprema Corte dos EUA determina aplicação de lei da Califórnia que proíbe ‘cura gay’

Suprema Corte dos EUAJuízes recusaram pedido de revisão de texto por parte de defensores de terapias reparativas

SÃO FRANCISCO – A Suprema Corte dos EUA abriu o caminho para iniciativas que embarreiram a “cura gay”, ao determinar a aplicação de uma lei da Califórnia que proíbe o aconselhamento psicológico que visa a transformar menores gays em heterossexuais.

A Lei da Califórnia deveria entrar em vigor no ano passado, mas ficou em espera por conta de ações que tentaram derrubá-la. A Justiça não atendeu ao recurso de apoiadores da chamada conversão ou terapia reparativa.

Os juízes mantiveram uma decisão de agosto de 2013 que dizia que o banimento cobria atividades profissionais que cabem ao estado regular, e que não violava a liberdade de expressão dos profissionais e dos pacientes buscando tratamento.

​No ano passado, o Tribunal de Apelações dos EUA foi favorável ao entendimento, defendido por ​legisladores da Califórnia, de que ​terapias destinadas a mudar a orientação sexual para menores de 18 anos estavam fora das pesquisas científicas e têm sido repudiadas pelos principais grupos médicos, além serem consideradas potencialmente perigosas.

“A Suprema Corte decidiu bloquear qualquer abertura possível para se permitir mais abuso infantil psicológico na Califórnia”, disse o senador estadual Ted Lieu, autor da lei, nesta segunda-feira. “A recusa do Tribunal em aceitar o apelo de terapeutas com fundamentos ideológicos extremos e​ que​ praticam o charlatanismo de terapia de conversão gay é uma vitória para o bem-estar da criança,​ da​ ciência e​ dos​princípios humanos básicos.”

A lei diz que terapeutas profissionais e conselheiros que ofereçam tratamentos destinados a eliminar ou reduzir atração pelo mesmo sexo em seus pacientes estão apresentando conduta não profissional e, por isso, estão​ sujeito​s​ a sofrer revisões em seus licenciamentos. A lei, entretanto, não abrange ações de pastores e conselheiros leigos que forneçam terapias de “cura gay” por meio de programas da igreja.

Os grupos que criticam a lei argumentam que os legisladores não têm comprovação científica de que a terapia faz mal. O governador de Nova Jersey Chris Christie assinou uma lei proibindo a prática em seu estado no ano passado.

Fonte: O Globo

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Arquivado em Direito Constitucional, Direitos Fundamentais, Judiciário, Minorias

60 anos depois do caso Brown, a segregação racial volta às escolas dos EUA (ou nunca deixou de existir)

Jim Crow in the Classroom: New Report Finds Segregation Lives on in U.S. Schools

 As the U.S. Supreme Court upholds a ban on affirmative action in Michigan and the country marks 60 years since the landmark decision of Brown v. Board of Education, we look at how segregation is still pervasive in U.S. public schools. An explosive new report in ProPublica finds school integration never fully occurred, and in recent decades may have even been reversed. Focusing on three generations of the same family in Tuscaloosa, Alabama, the story concludes: “While segregation as it is practiced today may be different than it was 60 years ago, it is no less pernicious: in Tuscaloosa and elsewhere, it involves the removal and isolation of poor black and Latino students, in particular, from everyone else. In Tuscaloosa today, nearly one in three black students attends a school that looks as if Brown v. Board of Education never happened.” We are joined by Nikole Hannah-Jones, whose article, “The Resegregation of America’s Schools,” is the latest in the ProPublica series “Segregation Now: Investigating America’s Racial Divide.”


This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: The Supreme Court has upheld Michigan’s ban on affirmative action at state colleges and universities. The case centers on a 2006 voter referendum in Michigan that barred race- and sex-based preferences in admissions. An appeals court previously ruled the ban violates the Constitution’s Equal Protection Clause. But in a six-to-two decision, the Supreme Court overruled the lower court. The justices in the majority argued policies affecting minorities that do not involve intentional discrimination should be decided at the ballot box rather than in the courtroom. In her dissent, Justice Sonia Sotomayor argued, quote, “The way to stop discrimination on the basis of race … is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Tuesday’s ruling will likely bolster similar anti-affirmative action measures in several other states, and it comes as this spring marks 60 years since the landmark Supreme Court ruling ofBrown v. Board of Education, which was intended to end segregation in America’s public schools. But an explosive new report finds school integration never fully occurred and, in recent decades, may have even been reversed. “The Resegregation of America’s Schools” is the latest in an ongoing series by ProPublica called “Segregation Now: Investigating America’s Racial Divide,” and it focuses on three generations in the same family in Tuscaloosa, Alabama.

AMY GOODMAN: The report concludes that, quote, “while segregation as it is practiced today may be different than it was 60 years ago, it is no less pernicious: in Tuscaloosa and elsewhere, it involves the removal and isolation of poor black and Latino students, in particular, from everyone else. In Tuscaloosa today, nearly one in three black students attends a school that looks as if Brown v. Board of Education never happened.”

Well, for more, we’re joined by the author of “Segregation Now,” the whole series, Nikole Hannah-Jones. She covers civil rights for ProPublica, with a focus on segregation and discrimination in housing and schools.

We welcome you to Democracy Now! Congratulations on this remarkable series, and coming out now at the same time that the Supreme Court has backed a ban on race as a factor in college admissions. Before we talk about Tuscaloosa, if you could briefly comment on this idea that race shouldn’t matter when you look at the schools of America.

NIKOLE HANNAHJONES: Well, I think it’s very obvious, if you just look strictly at the facts, that we still have a racialized K-12 system and that black and brown students tend to be in schools where they’re receiving an inferior education. They have a less rigorous curriculum. They’re less likely to get access to classes that will help them in college, such as advanced placement physics, higher-level math. And they are most likely to be taught by inexperienced teachers. So, when you have this system where black and brown students are receiving a very different education than white students, and then once you get to the college level you say race no longer matters, and despite your disadvantage in a public educational system, that now we are all—everyone should compete at the same level, I think, in some sense, it’s just—there’s just a big disconnect between what’s happening on these two levels of education.

AMY GOODMAN: It’s interesting, Sonia Sotomayor, Justice Sotomayor’s dissent, very eloquent dissent, against Chief Roberts.

NIKOLE HANNAHJONES: Yeah, so, in 2007, Chief Justice Roberts wrote in a decision striking down voluntary desegregation orders in Seattle and in Louisville, Kentucky, and these were two districts that wanted to maintain integration in the schools because they understand the value of that for students as—I guess, really in terms of education. And what Chief Justice Roberts said, a very pithy response, the way to stop discriminating on race is to stop discriminating on race. And Justice Sotomayor definitely addressed that and said, “You can’t ignore the existence of race, and the way that you eliminate racial inequality is not to pretend that it doesn’t exist.” So, she was directly kind of addressing that response.

NERMEEN SHAIKH: Could you explain, Nikole—you said that minorities, black and brown students, receive an inferior education. Could you give a kind of overview of why that’s the case? Is it because of districting, where schools—what schools get what kinds of resources, etc.? Why is that the case?

NIKOLE HANNAHJONES: What’s often forgotten about Brown was Brown was really addressing the system of racial caste that we had then and that resources will really—

AMY GOODMAN: Explain what you mean by BrownBrown v. Board of Education.

NIKOLE HANNAHJONES: Oh, I’m sorry. Right, Brown v. Board of Education, which was the 1954 ruling, the landmark ruling that struck down the concept of separate but equal in schools. And what it understood was that resources follow white students in this country, that schools that have a significant percentage of white students get better teachers. They get better textbooks. They get better, really, curriculum. And so, today, that’s still the case. We have not eliminated that kind of connection between resources and race.

NERMEEN SHAIKH: So could you talk about what it is that prompted this study? This was a year-long investigation that you conducted. How did you come upon the topic and decide to research it in this way and focus on Tuscaloosa?

NIKOLE HANNAHJONES: Well, I had—prior to working on school segregation, I had spent nearly two years working on housing segregation and really looking at the federal failure—the 45-year federal failure to enforce the Fair Housing Act, and asking why, when we have a fair housing law, we still have so much racial segregation. And so, during the course of that, I became very interested in the connection between segregated housing and segregated schools, and I knew I wanted to do some reporting on school segregation, in particular.

And I focused on the South because, despite what a lot of people think, the South actually did desegregate. And it went from being completely segregated to, within a span of 40 years, even now, to becoming the most integrated region of the country. The South also educates the most black students. So you have the one region of the country that actually did desegregate, and they’re educating the most black students, and they are starting to now slide back on that. And so, to me, it was critical to write about the South first because that’s where we have the most to lose.

AMY GOODMAN: I want to go back to 2007. The Tuscaloosa School Board approves a redistricting plan then that further segregated black students. This is school board member Ernestine Tucker speaking in a video that accompanied the ProPublica investigation.

ERNESTINE TUCKER: My position was: We’ve rushed into this. We need more time. We need more research. But for the majority of the people on the school board, who represented the majority of the voters, it was OK. And I said to them, “We will experience the damage of this decision for the next 50 years.” I said, “It’s criminal, what we’ve done tonight.”

AMY GOODMAN: That was Tuscaloosa School Board member Ernestine Tucker. This is Shelley Jones, former chair of the Tuscaloosa School Board.

SHELLEY JONES: We have maintained a desegregated school system. There are all kinds of evidence that—that every day, I think, the board endeavors, yet today, to maintain that and to ensure that. Those who had doubts that this would—that desegregation and the Green factors would be maintained of desegregation, I think now they realize, in fact, yes, we do—we see it in action. It is taking place.

AMY GOODMAN: Former Tuscaloosa School Board Chair Shelley Jones from a video by Maisie Crow called Saving Central. Can you talk about the role of the school board in Central High? You know, it’s interesting, Central, because Central was also Little Rock, Arkansas.


AMY GOODMAN: But you looked at Tuscaloosa.

NIKOLE HANNAHJONES: Right. So what brought me to Tuscaloosa, what I was interested in was the South had been reshaped largely because of federal court orders. So the courts had forced integration on the South, and it had been successful. And over the last 20 years, we’ve seen a lot of those segregation orders lifted by the courts, and what we found was that as districts lose their federal oversight, they do begin to resegregate. And Tuscaloosa has become one of the most rapidly resegregating school districts in the country. And that’s largely because of what the school board did with Central.

So, in 2000, when a federal judge released Tuscaloosa from its court order, the school board immediately voted to split up Central. And Central had been created by the court order. In 1975—or, excuse me, ’79, 25 years after Brown, Tuscaloosa still operated a virtually black high school and a white high school. And so, a court forced the merger of those two schools, and it created Central. And it was actually an integration success story. But because of fears of white flight, the board voted in 2000 to split apart that school, and they created three high schools—two integrated and one that was entirely black.

And so, what I really wanted to show with this report is that segregation is not an accident. And I think a lot of times we focus on, well, it’s just—you know, it’s natural, or it’s based on where people live. But the irony of Central High School is Central High School is actually located in an integrated neighborhood, but the white students right across the street from the school are gerrymandered into a district to go to an integrated school, and that Central was created as a black school by the intentional drawing of district lines.

NERMEEN SHAIKH: Could you explain, Nikole, why is it that federal judges have been lifting court-ordered segregation mandates? Because that’s obviously had an enormous effect on this resegregation.

NIKOLE HANNAHJONES: Right. I think part of it is—I mean, in the ’90s, the Supreme Court began to really roll back desegregation. And so, it made it much easier for school districts to get out from under desegregation orders. Prior to that, the Supreme Court had a very high standard, which was districts had to eliminate, root and branch, all vestiges of segregation. But by the ’90s, the court was saying that they only had to do it to the extent practicable. In other words, they didn’t actually have to eliminate it, but if they showed that they tried in earnest, then a court could release them. So, that started to happen. And then, during the two Bush terms, Bush really had a policy of trying to get as many of these orders dismissed. There was integration fatigue. I think people felt like, after 40 or 50 years, that enough time had passed and that we had eliminated anything that could be related to the time before Brown, and any current discrepancies and any current disparities are related to kind of things like neighborhood and poverty and have nothing to do with race.

AMY GOODMAN: Let’s go to the principal of Central. Let’s go to Clarence Sutton Jr., speaking in the video Saving Central: One Principal’s Fight in a Resegregating South, which accompanied theProPublica investigation.

CLARENCE SUTTON JR.: If we did school 8:00 to 3:00 like we always did it, we would still be in the same spot. You just can’t do school like everyone else does school. It takes me giving up my day, my evening. It takes my wife saying, “Do what you have to do,” and be understanding. It takes a faculty to say, “We’ll come in our school free. Don’t worry about paying us. We’ll all donate two hours. We’ll come in on Saturday.” It takes that kind of people. It’s a system that’s just getting in place, but I feel like we’re 10 years behind. So we’re working faster to play catch-up. When I went to Central High School, I felt special. The whole state thought we were special. You had National Merit scholars. You had four or five foreign languages being taught. You had the best teams. You had a math national championship. But to break that up, that’s something I think I will never really understand.

AMY GOODMAN: That’s Clarence Sutton Jr., principal of Central High School in Tuscaloosa in that video by Maisie Crow. Explain who Mr. Sutton is and his role at Central.

NIKOLE HANNAHJONES: So, Dr. Sutton is the principal of Central, and he actually attended the integrated Central and then was a product of that integration and now is teaching at a school that is 99 percent black and more than 84 percent poor. And so, he really talks about the educational struggles, because it’s not just the racial segregation, but it’s also the segregation of these students by income, that you take the most disadvantaged students and concentrate them in one school, but also don’t give that school the resources. I mean, for 10 years, Central didn’t even offer a physics class. There were years where it didn’t offer advanced placement classes, while the most integrated high school had 12 advanced placement classes. Teachers who were let go of other schools could be rehired at Central. So, what people feared would happen when Central was broken apart, which was that these poor black students would be separated and written off, is largely what people say happened at Central.

NERMEEN SHAIKH: You also suggest, Nikole, that Alabama state officials actively encouraged white parents to remove their children from public schools. Why did they do that? And what was the impact of that ultimately?

NIKOLE HANNAHJONES: I think today we tend to forget that there was a reason the Supreme Court had to rule on the issue of school segregation. In the South, it was written into the law. White supremacy was written into the law. And there was a belief that black students should not attend schools with white children. And elected officials fought very virulently against desegregation. And when it became clear that the courts were going to force desegregation, white officials in Alabama and other parts of the South shut down schools. They shut down sometimes entire districts. And they also encouraged what were called segregation academies, which were white flight academies, private academies that were set up to educate white students who were for fleeing the public schools. So, a lot of times we attribute white flight to busing or to desegregation, but it really was begun and led by public officials.

NERMEEN SHAIKH: Another striking fact that you bring up in your piece is, while there was this racial segregation, there was an enormous amount of economic diversity. One of the people you profiled, James Dent, one of his classmates at Druid High School was Condoleezza Rice. So how is it that that economic diversity works together with this racial uniformity?

NIKOLE HANNAHJONES: Right. So, at the time, in Tuscaloosa and other places, every black person in the community went to the same high schools, because the schools were segregated. So, no matter how wealthy you were or how poor you were, you went to the same high school. And that economic diversity has always been very important. But now, what happens is that in—the integrated high schools are largely being integrated with more middle-class black students, and what’s left behind in these segregated schools are the poorest black students in the community. And so, not only are they experiencing no racial diversity, but they’re also experiencing no economic diversity.

AMY GOODMAN: As we wrap up, I wanted to go to the title of your investigation, “Segregation Now.” Let’s go to that famous inauguration speech by Governor George Wallace of Alabama, who had been elected as a Democrat on November 14, 1963.

GOVGEORGE WALLACE: Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this Earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow and segregation forever.

AMY GOODMAN: That’s Democratic Governor George Wallace in his inauguration address after winning the race for governor. That was back in 1963, Nikole. That was more than a half a century ago. And that is the title of your series that you’ve spent a year investigating and writing.

NIKOLE HANNAHJONES: We chose “Segregation Now” not to necessarily say that what George Wallace predicted would be true, because it’s not. What George Wallace and others like him wanted was all-white schools. All-white schools don’t really exist anymore. But all-black schools do. And that’s the segregation today, is that 60 years after Brown, and really, I show through a single generation of one family, integration is gone for many students.

AMY GOODMAN: And yet, in New York, a study has just shown New York has the most segregated schools in the country.

NIKOLE HANNAHJONES: Absolutely. And this is one of the things where I hoped the story—excuse me—would do some myth busting, because we all up here have this perception of the South. The South did integrate. We have never seen true desegregation in the Northeast or the Midwest. And if you look at in terms of neighborhoods and schools, the most segregated parts of the country have—for black people, have consistently been in the Midwest and in the Northeast.

AMY GOODMAN: Seventy-three percent of charter schools in New York City were deemed so-called apartheid schools, where white enrollment was below 1 percent?

NIKOLE HANNAHJONES: Yes. And over all of the New York public schools, it’s about a quarter of black students. And in Chicago, it’s a third of black students are in these so-called apartheid schools. So I think there’s a lot of reckoning to be done.

AMY GOODMAN: Why apartheid schools?

NIKOLE HANNAHJONES: They call them apartheid schools because they’re 99 percent black or brown. And that’s not my terminology, but when you talk to the researchers who use this term, is they want to shock Americans with that term. They want to say—because we have kind of come to accept once again separate but equal. When you look at Race to the Top, when you look at No Child Left Behind, we’re still trying to make these separate schools equal. And never in the history of our country have we managed to do that. So I think what they’re really trying to do is say these schools are unjust, and they want to shock people with that terminology.

AMY GOODMAN: Well, Nikole, you’ve done a remarkable job. We’re going to link to your series. Nikole Hannah-Jones joined ProPublica in late 2011, covers civil rights with a focus on segregation and discrimination in housing and schools. Her major ongoing investigation is “Segregation Now: Investigating America’s Racial Divide.” And we will—her latest piece, “The Resegregation of America’s Schools.” We’ll link to it at

When we come back, the new Pulitzer Prize-winning nonfiction writer Dan Fagin will join us. His book is called Toms River: A Story of Science and Salvation. Stay with us.

Fonte: Democracy Now

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Arquivado em Direito Constitucional, Direitos Humanos, Minorias

“Liberdade de Expressão” NÃO ABARCA Discurso Homofóbico


La Primera Sala de la Suprema Corte de Justicia de la Nación resolvió que las expresiones discriminatorias, especialmente las homofóbicas como “puñal” o “maricón”, no se encuentran protegidas por el derecho a la libertad de expresión consagrado en la Constitución.

Esta resolución puso fin a la disputa legal entre dos periodistas de la ciudad de Puebla. En 2010, Armando Prida Huerta, dueño del diario Síntesis, demandó a Enrique Núñez Quiroz, del diario Intolerancia, por una columna en la que Núñez Quiroz se refirió a Prida Huerta como “puñal”, y sostuvo que sólo los “maricones” escriben en el periódico Síntesis.

La SCJN resolvió el Amparo directo en revisión 2806/2012 argumentando que el lenguaje discriminatorio provoca prejuicios que se arraigan en la sociedad modificando la percepción que las personas tienen de la realidad, poniendo en condiciones de vulnerabilidad a ciertos grupos o personas. Si bien es cierto que estas expresiones se encuentran fuertemente arraigas en el lenguaje mexicano, la SCJN señaló que las prácticas que realizan la mayoría de los integrantes de la sociedad no pueden convalidar violaciones a derechos fundamentales.

Asimismo, a pesar de que estas expresiones se emitan en sentido burlesco, promueven y legitiman la intolerancia hacia la homosexualidad considerándola como una condición de inferioridad. Cabe destacar que es la primera vez que se analiza y se pondera la relación y el problema entre la libertad de expresión y las manifestaciones discriminatorias.

La resolución se resolvió con 3 votos a favor de los Ministros Pardo Rebolledo, la Ministra Sánchez Cordero de García Villegas y el Ministro Arturo Zaldívar Lelo de Larrea, y 2 votos en contra de los Ministros Cossío Díaz y Gutiérrez Ortiz Mena.

Veja: La Sentencia de la SCJN del amparo directo en revisión 2806/2012
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Arquivado em Democracia, Direito Constitucional, Direitos Fundamentais, Direitos Humanos, Judiciário, Minorias

Corte europeia discute expressão religiosa no trabalho

Coat of arms of British Airways.

A Corte Europeia de Direitos Humanos começa a julgar, na próxima terça-feira (4/9), se a crença religiosa de funcionários justifica que eles descumpram regras do local onde trabalham. O tribunal também analisa se a religião autoriza até mesmo o descumprimento de leis que confrontam com a fé de cada um. Os juízes europeus vão ouvir o depoimento de quatro trabalhadores que alegam ter sido discriminados no Reino Unido.

Os trabalhadores Nadia Eweida, Shirley Chaplin, Lilian Ladele e Gary McFarlane não têm a mesma profissão e não trabalham no mesmo lugar. Em comum, eles dividem a religião — o catolicismo — e uma batalha judicial para comprovar terem sido vítimas de descriminação religiosa no ambiente de trabalho. Na Justiça britânica, todos os quatro saíram fracassados. Eles tentam agora convencer os juízes europeus, cada um com sua história.

[1] A primeira história é contada por Nadia Eweida. Ela começou a trabalhar na companhia aérea britânica, a British Airways, em 1999. Ficava no balcão de check in da companhia em determinado aeroporto, atendendo os clientes que iam viajar. Tinha que usar o uniforme da empresa: uma camisa de gola alta e gravata. Como regra, não podia exibir nenhum outro acessório, como colares.

O traje de trabalho funcionou bem para Nadia até 2006, quando ela decidiu exibir por cima do uniforme uma corrente de prata com um crucifixo para poder expressar sua fé. A funcionária rejeitou os pedidos da empresa para esconder o crucifixo por baixo da camisa e também recusou a oferta de mudar de setor e deixar de atender clientes. O imbróglio lhe rendeu cinco meses de licença não remunerada, até que, em fevereiro de 2007, a British Airways mudou suas regras e passou autorizar que funcionários exibissem símbolos religiosos, como crucifixo. Nadia, então, voltou ao trabalho.

[2] A enfermeira Shirley Chaplin também era obrigada a trabalhar de uniforme num hospital público da Inglaterra. Ela era funcionária do lugar já há 18 anos quando houve uma mudança na vestimenta: as blusas, que até então eram fechadas até o pescoço, foram trocadas por outras com gola em V, deixando o crucifixo que Shirley carregava no pescoço à mostra. Foi aí que começou o conflito.

A regra nos hospitais públicos proíbe enfermeiras de usarem qualquer joia ou bijuteria por motivos de segurança. O objetivo é evitar que o acessório enganche em algum paciente ou mesmo seja puxado e machuque enfermeira e doente. Shirley recusou retirar o crucifixo do pescoço e acabou transferida de posição para não lidar mais com os pacientes.

Pecado da luxúria
A história de Lilian Ladele e Gary McFarlane, que também será contada na terça-feira (4/9) para a Corte Europeia de Direitos Humanos, é semelhante. Como católicos, os dois condenam o homossexualismo e se recusaram a cumprir regras do trabalho e da própria lei britânica que garantem o direito dos gays.

[3] Lilian era escrivã de um cartório quando entrou em vigor nova legislação britânica autorizando união civil para pessoas do mesmo sexo. Ela se recusou a registrar uniões entre homossexuais e, depois de responder a procedimento administrativo, recebeu o ultimato: ou cumpria a lei e garantia o direito dos gays ou estava demitida. Acabou cedendo.

[4] Já no caso de Gary a ameaça foi cumprida. Ele trabalhava como psicólogo especializado em orientar casais com problemas sexuais, mas se negava a atender pessoas que mantinham relacionamentos gays. Depois de uma investigação administrativa, que concluiu a interferência da religião na função de Gary, ele foi demitido.

Os quatro católicos querem que a corte europeia reconheça que dois artigos da Convenção Europeia de Direitos Humanos foram violados: o 9, que trata da liberdade de religião, e o 14, que proíbe a discriminação. Os juízes europeus vão decidir, primeiro, se cabe a eles analisarem as quatro reclamações. Ainda não há data definida para o julgamento.

[5] No Reino Unido, a Suprema Corte tem em suas mãos caso semelhante aos levados à Justiça europeia. Os donos de uma pousada querem que seja reconhecido o direito deles de impedir que gays dividam a mesma cama dentro do estabelecimento. Os dois são cristãos e alegam que a crença deles só autoriza o sexo entre duas pessoas casadas. Recentemente, eles foram condenados a pagar indenização de 3,6 mil libras (R$ 11 mil) para dois homossexuais que foram impedidos de se hospedar num quarto com uma cama de casal, conforme haviam pedido (abaixo).

Suprema Corte britânica julga religião e direito de gays

Por Aline Pinheiro

A Suprema Corte do Reino Unido decidiu julgar um caso que coloca em lados antagônicos duas garantias fundamentais à democracia: a liberdade de religião e a proibição de discriminação. Os juízes decidiram analisar o apelo dos donos de uma pousada que foram condenados por impedir que dois homens dividissem a mesma cama. O julgamento ainda não tem data prevista para acontecer.

O casal Hazelmary e Peter Bull mantém uma pousada numa cidade litorânea na região da Cornualha, costa oeste da Inglaterra. Os dois são cristãos e procuram, tanto na vida pessoal como profissional, seguir os ensinamentos da Bíblia. Um deles é o de que sexo só pode ser feito dentro do casamento. Caso contrário, é pecado. E, para evitar que seus hóspedes pequem, o casal impede que duas pessoas que não são casadas durmam em quartos com uma cama de casal.

A política cristã na pousada não parecia causar muito problema com os hóspedes. Até que, em setembro de 2008, Martyn Hall e Steven Preddy resolveram se hospedar lá. Os dois são homens, homossexuais e vivem em união civil. Resolveram aproveitar os últimos dias quentes da Inglaterra na Cornualha e pediram para ficar num quarto com uma cama de casal, como fazem os casais. Não conseguiram. Os donos da pousada negaram dizendo que sexo fora do casamento é pecado e, como os dois homens não eram casados, não poderiam dormir juntos.

Martyn e Steven foram à Justiça reclamar terem sido vítimas de discriminação por serem gays. Alegaram que jamais poderiam se adequar às regras da pousada porque não podem se casar. Na Inglaterra, o casamento entre duas pessoas do mesmo sexo é proibido. Os homossexuais podem estabelecer união civil, mas não se casar. A mesma regra vale para a Escócia. O governo escocês, no entanto, já anunciou que vai propor legislação para autorizar que gays se casem.

O juiz de primeira instância determinou que os donos da pousada pagassem indenização de 1,8 mil libras para cada um (cerca de R$ 5,5 mil). A decisão foi mantida pela Corte de Apelo. Os julgadores da corte entenderam que o direito à liberdade religiosa não é absoluto e pode ser restringido, por exemplo, para evitar práticas discriminatórias (clique aqui para ler a decisão em inglês).

Agora, o casal Bull vai defender na Suprema Corte do Reino Unido o direito de manter sua política religiosa na pousada. Eles alegam que, se forem obrigados a aceitar que namorados durmam na mesma cama, terão de fechar o hotel porque não podem ser coniventes com o pecado. Caberá à Suprema Corte decidir se a liberdade de religião legitima a discriminação de homossexuais ou se a prática, por atingir todos os não casados, não é discriminatória.

A Corte Europeia de Direitos Humanos já decidiu nesse sentido, ao entender que proibir que um companheiro gay adote o filho biológico de outro não é discriminação. Na ocasião, os juízes europeus analisaram o Código Civil francês que permite que um parceiro adote o filho biológico do outro apenas se eles forem casados. Caso contrário, não. Como pessoas do mesmo sexo não podem se casar, a adoção dessa forma fica impedida para os homossexuais. A corte europeia considerou que a proibição não é discriminatória se valer para todas as uniões civis diferentes do casamento, entre pessoas de sexo oposto ou do mesmo sexo.

Matérias publicadas no Conjur:

15/01/2013: Resultado do Julgamento:

Balancing Christian and gay rights isn’t easy – give Strasbourg some credit

The conclusion reached by the European court of human rights in Christian discrimination cases is no surprise but the principle is difficult to apply

British Airways employee Nadia Eweida celebrates winning her case outside her barrister's chambers in London, after the European Court of Human Rights ruled that she had suffered discrimination at work because of her faith. She took the airline to a tribunal after she was forced out of her job for wearing a cross in breach of company uniform codes.

British Airways employee Nadia Eweida celebrates winning her case at the European court of human rights. It may be the first defeat for the UK in a case brought under article 9 of the human rights convention Photograph: Yui Mok/PA

Christians and other faith groups do have the right to manifest their religious beliefs in the workplace but it is a right that must be balanced against the rights of others.

That conclusion, reached by the European court of human rights inresponse to claims brought against the British government by four individual Christians, should come as no surprise. But the detailed rulingshows how difficult it was for the seven Strasbourg judges who heard the claims to apply this broad principle to the cases they were deciding.

Take the case of Lilian Ladele, the registrar of births, deaths and marriages who lost her job when she refused to conduct civil partnership ceremonies. By a majority of five votes to two, the Strasbourg judges dismissed her claim that she had suffered discrimination in comparison to a registrar with no religious objection to same-sex unions.

That was because the local authority for which she worked also had a legitimate duty to protect the rights of same-sex couples. The human rights court generally allows member states a wide discretion — what it calls a “margin of appreciation” — when it comes to striking a balance between competing rights. According to the five judges in the majority, the decision to sack her was within that discretion.

But look at what the two minority judges — from Montenegro and Malta — had to say. Recalling that civil partnership ceremonies did not exist in 2002 when Ladele became a registrar in London, the judges found that “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured ‘gay rights’ over fundamental human rights) eventually led to her dismissal”.

Minority judgments are written by the judges themselves, unlike the majority ruling which is compiled by officials. The court itself would never have said that gay rights were not human rights.

Nadia Eweida, a check-in operator for British Airways, was the only one of the four applicants to win her case — again by a majority of five votes to two. This time it was the British and the Icelandic judges who would have rejected her claim. They thought the court of appeal in London had been right to dismiss Eweida’s earlier appeal, given all the facts. She had started her job in 1999 and wore a small cross beneath her uniform without any difficulty until 2006.

Eweida was sent home without pay between September 2006, when she refused to remove or conceal her cross, and February 2007, when British Airways changed its policy and allowed her back. The Strasbourg judges awarded her 2000 euros in compensation for her anxiety, frustration and distress. The government was also ordered to pay towards her legal costs.

Ironically, one reason the court found in Eweida’s favour was that British Airways had changed its policy so readily. “The fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery,” it said, “demonstrates that the earlier prohibition was not of crucial importance”.

But the main reason she won her case was that the balance came down in her favour. “On one side of the scales was Ms Eweida’s desire to manifest her religious belief… On the other side of the scales was the employer’s wish to project a certain corporate image.” In Strasbourg’s view, the UK courts had given the latter aim too much weight. BA staff could already wear turbans and hijabs without any negative impact on the airline’s brand or image.

In Eweida’s case, there was “no evidence of any real encroachment on the interests of others”. Contrast that with the case of Shirley Chaplin, a nurse who had worn a cross at work without any difficulty until V-necked tunics were introduced in 2007. Hospital managers feared that a disturbed patient might grab the chain on which it was worn or that the cross might swing forward and come into contact with an open wound.

Tempting though it must have been for the court to dismiss these arguments as fanciful, the court deferred to the domestic authorities. “The reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida,” the court said.

Finally, the court dismissed a claim by Gary McFarlane, who refused to counsel same-sex couples after joining an organisation that he knew did not discriminate on grounds of sexual orientation. The balance struck between his rights and the rights of the gay couples came within the UK’s broad margin of appreciation.

At the most basic level, the ruling shows that there is no easy way of balancing the rights of gay people and the rights of Christians: it all depends on the circumstances. In one sense, the balance is shifting towards Christians: as far as I can see, Eweida’s victory is the first defeat for the UK in a case brought under article 9 of the human rights convention, the right to freedom of thought, conscience and religion.

This judgment also strengthens the protection provided by article 9. In the past, the court has held that there was no breach of an employee’s religious freedom — from, say, having to work on the sabbath — if the worker could resign and find another job. That was something of a cop-out. Now, says the court, “the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”. Judge Bratza, the court’s British former president, went further and said that earlier decisions to the contrary should not be followed.

Adam Wagner, the barrister and blogger, suggested on Twitter that there was “perhaps a whiff of tokenism in Eweida’s win”. It was “the most convincing case, but still should probably have been left to the UK courts”.

Liberty, which supports human rights for all, tweeted that the court had been right to find for Eweida and equally rightis to dismiss the other three claims.

The court’s conclusion is certainly very convenient. It has supported the right to manifest one’s religion — but against the rights of an employer rather than against the rights of individuals. It did so, in one case, after the employer had changed its policy, implicitly accepting that the former restrictions could not be justified. But, in the other case involving the wearing of a cross, it supported an employer which had sought to justify its policy.

In the two remaining cases, the court has not favoured Christians over gay people. But in stressing that member states have a wide discretion in striking a balance between conflicting rights, it allows for the possibility that future disputes will be decided in favour of religious groups.

It even produced a complicated judgment within four months. Whether you agree with the court’s findings or not, you have to give it some credit for sensitivity and shrewdness.

Fonte: The Guardian

Ver também: Conjur,  Conjur, Conjur


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STF e Suprema Corte no séc. XX – Direito Legal

STF E Suprema Corte No Séc. XX

O Supremo Tribunal Federal se modificou muito desde a abertura democrática proporcionada pela Constituição de 1988. A história do STF, que começa com o Golpe Militar que instaurou a República no Brasil, é a de um Tribunal criado à imagem da Suprema Corte dos EUA mas que com ela pouco se assemelha.

A Suprema Corte dos EUA passou o século XX com momentos de grande “ativismo”: no começo do século considerava inconstitucionais quaisquer leis que criavam benefícios sociais para trabalhadores: salário mínimo, férias, redução da jornada de trabalho para “apenas” 8 horas, etc. Era uma Corte conservadora que defendia que os direitos fundamentais da liberdade de iniciativa e da liberdade de contratar estavam sendo feridos por aquelas leis.

Nos anos 1950 chega a “Era Warren” em que a Corte foi fundamental para que o aparato estatal se movesse contra o racismo: “Brown vs. Board of Education of Topeka” (1954) e outros similares acabaram com o precedente (criado pela Corte no final do século XIX) segundo o qual a Constituição impunha a igualdade, no entanto, não vedava a separação: é a doutrina dos “iguais mas separados”. Em 1967 ela declarou inconstitucionais leis estaduais que proibiam casamentos entre pessoas de “cores” diferentes (é o caso Loving v. Virginia e outros).

Foi ela quem criou as “cotas” em universidades, após considerar inconstitucionais as normas daquelas que proibiam a entrada de negros. Apesar disso, a Universidade Batista Bob Jones não aceitava alunos negros até 1971 e, até o ano 2000, proibia “namoros inter-raciais”. Sobre isso o teólogo P. Yancey escreveu: “Os batistas do sul [dos EUA] precisaram de 150 anos para pedir desculpas por seu apoio à escravidão, e foi só em novembro de 2008 – duas semanas após a eleição de Obama – que a Universidade Bob Jones admitiu seu erro na exclusão de estudantes negros até 1971 e na proibição do namoro inter-racial até 2000” (“Para que serve Deus”, p. 174).

Ainda, foi ela quem enfrentou a dura questão do aborto, decidindo, em 1973, que os Estados não poderiam criar normas que o proibissem totalmente.

Enquanto isso, o STF passou o século XX sob pressão das várias Ditaduras que tivemos, ora deixando de nomear Ministros, ora descumprindo suas decisões, ora aumentando, ora diminuindo, à força, o número de Ministros. Foi apenas a partir de 88 que o STF, finalmente, se tornou um Tribunal livre, de defesa e “guarda” da Constituição.

Alexandre Gustavo Melo Franco Bahia

viaSTF e Suprema Corte no séc. XX – Direito Legal.

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