Full Constitutional Protection for Some, but No Privacy for the Poor

New York Times:By ADAM LIPTAK

In San Diego, poor people who want public benefits must give up their privacy. Investigators from the district attorney’s office there make unannounced visits to the homes of people applying for welfare, poking around in garbage cans, medicine chests and laundry baskets. ...

Lawyers who have sued on behalf of the applicants say that being poor should not mean having to give up the Fourth Amendment’s protection against unreasonable government searches. So far, the courts have disagreed, saying that rooting out welfare fraud justifies the searches, but not without drawing some fierce dissents. ...

The San Diego program is the most aggressive one in California and perhaps in the nation, but the recent decisions have probably given governments around the country all kinds of ideas. An earlier home-visit program, instituted in New York in 1995 by Mayor Rudolph W. Giuliani, was largely dismantled as part of the settlement of a lawsuit in 1997.

Lawyers for the plaintiffs in San Diego said the money the county saved was not worth the price in privacy and dignity.

“The poor are presumed guilty, presumed lazy and presumed to be trying to gain something they don’t deserve,” said Professor Budd, who now teaches at the Franklin Pierce Law Center in Concord, N.H. “It’s a general poverty exception to the Fourth Amendment.” ...

The majority also relied on a 1971 Supreme Court decision, Wyman v. James, which upheld a New York program involving scheduled visits from social workers, not surprise searches by investigators from a prosecutor’s office. The Supreme Court said the main purpose of the New York visits was “rehabilitation.”...

One of the dissenting judges, Harry Pregerson, writing for himself and six colleagues in April, suggested one sort of argument that might be promising. He said there was a double standard at work.

“The government does not search through the closets and medicine cabinets of farmers receiving subsidies,” Judge Pregerson wrote. “They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters.”

Only the poor, he said, must “give up their rights of privacy in exchange for essential public assistance.”

Wyman v. James was a relatively new decision when I read it in law school. It made me ashamed to be an American. My recollection is that it was Justice Harry Blackmun's "maiden opinion" as a new member of the Court. I wonder what he thought of it in his later years. And here it is again. This is one precedent that the current Court majority seems unlikely to undermine or reverse. It sucks to be poor in America.

[Canada's] Supreme Court reaffirms ban on spousal testimony

Vancouver Sun:
Janice Tibbetts, CanWest News Service

OTTAWA - An ancient law that bans spouses from testifying against each other has saved a B.C. man from a double-murder conviction after the Supreme Court of Canada ruled Friday that his wife's revelation that he allegedly confessed should not have been used against him.

The federal law, rooted in the days when husbands and wives were legally regarded as one person, prohibits spouses from testifying against each other out of concern for 'marital harmony' and the 'natural repugnance' of having one spouse testify against another.

By a 5-4 margin, the Supreme Court upheld a British Columbia Court of Appeal decision that awarded David Couture a new trial because he was still married to his wife when she told police he had confessed, even though they had separated a few days earlier. ...

The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests.

At the cutting edge of family law

North County Times (Associated Press): Oregon convert to Judaism wants son circumcised; mother opposes

PORTLAND, Ore. -- A divorced couple have gone to court to determine whether their son is to be circumcised following his father's conversion to Judaism.

The former Medford, Ore., man wants his 12-year-old son to undergo the minor surgical procedure, but the boy's mother opposes it. So far, Oregon courts have sided with the father, who has custody.

'The primary custodial parent is the one that makes the decisions about religion and education and about matters of child-rearing,' Kathy Graham, associate dean for academic affairs at Willamette University College of Law.

Other family law experts agree, but say the courts should at least make sure the surgery is in the best interests of the child....

In court papers, the father claims the boy gradually concluded that he also wanted to convert to Judaism and understood that it required circumcision.

The father also claims as the custodial parent he had a constitutional right to raise his son in his religion.

I'd go with the kid on this one (or at least grant him veto power)!