Category Archives: Civil Rights

On Same-Sex Marriage

In 1952 William Rehnquist, the former Chief Justice of the Supreme Court, wrote a memo he called “A Random Thought on the Segregation Cases”.  At that time, Rehnquist was clerking on the Supreme Court for Justice Robert Jackson, and the memo was apparently addressed by Rehnquist to his then boss.

In his memo, Rehnquist mapped out his vision for how the Court should deal with a series of cases brought by the NAACP challenging the practice of racial segregation that were working their way through the lower courts and almost certainly bound for the Supreme Court.

Rehnquist, for the most part, urged restraint.  Rehnquist thought that because public opinion had already spoken on the topic of racial segregation — largely receptive of the practice — it would be inappropriate for the Court to get involved simply because its members  “dislike[d] segregation” or considered it “morally wrong[]”.  Only in “extreme cases”, Rehnquist cautioned, would it be appropriate for the Court to step in to “thwart public opinion”.  In Rehnquist’s mind racial segregation did not meet that test.

In concluding his memo, Rehnquist offered the following observation:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson [the case that established the principle of “separate but equal”] was right and should be re-affirmed.  If the Fourteenth Amendment did not enact Spencer’s Social Statios [sic], it just as surely did not enact Myrddahl’s American Dilemna [sic].

Rehnquist’s view, we know now, did not prevail.  The Court ultimately took the so-called “segregation cases” and voted unanimously to strike down as unconstitutional the practice of racial segregation in its landmark decision of Brown v. Board of Education.

Chief Justice Robert’s recent dissent in the same-sex marriage case makes a lot of the same points Rehnquist made in this memo, which is not surprising.  Like Rehnquist, Roberts is a conservative.   And he had at one time clerked for Rehnquist.  At one point in his dissent Roberts uses the same reference to Spencer’s Social Statics and the Fourteenth Amendment that Rehnquist used at the end of his memo, language which Roberts correctly attributes to Judge Friendly and Justice Holmes, but he almost certainly had Rehnquist and perhaps his 1952 memo in mind in writing that and the rest of his dissent.

The approach advocated by Rehnquist and Roberts — that is, let the legislators and voters decide — has some appeal.  One might counter however that they only suggest this approach because they know it is one that is self-defeating; that there will always be a majority of lawmakers and their supporters somewhere who will refuse to recognize the fundamental right at issue.

Right approach or not, what matters ultimately are the facts on the ground.  And that, to a large extent, is determined by the hearts and minds of everyday folks and how they wish to shape the society in which they live.  Court rulings and statutes carry some influence in that respect.  More so, however, is the unwritten code of life that governs how we treat one another  — with dignity, respect and fairness.  That it took years of hard-fought litigation and a sharply divided Supreme Court to confer on homosexuals the right to marry is proof that this code is sorely lacking in this country, or is simply not being observed to the extent that it should.  Were the opposite true, the debate about gay marriage would have ended a long time ago and with the “self-evident” conclusion that “all men [and women] are created equal….”

Removing the Barriers to Happiness

Linda Greenhouse, the Times’ former Supreme Court correspondent, recently wrote about the shifting views of the public on gay marriage and the prospect of the Supreme Court deciding once and for all whether  the Constitution confers a right on gays to marry.  In her piece, Greenhouse made the observation that where once it was taboo for one to come out in support of gay marriage, now that sentiment is almost  de rigueur.  In Greenhouse’s words:

Twenty years ago, even many well intentioned straight people found same-sex marriage a challenging concept to grasp, if they thought about it at all.  Today, it would take an act of will to ignore the fact that as barriers fall, the sum total of human happiness increases and any theoretical downside remains — as the states have found — impossible to articulate convincingly.

Greenhouse seemed to include herself among the “well intentioned straight people” for whom gay marriage was until recently an afterthought, which is admirable, if only because she tried to level with her intended audience, which most other writers today would never do.

But Greenhouse breaks no new ground in her piece.  She is mostly preaching to the choir when she reveals that even  “well-intentioned straight people” may have at one time denied gays the right to marry.  Discriminatory attitudes are not exclusive to born and bred bigots.  They are held by everyone, and can be shed by them.  But to say that one’s neighbor down the street in left-leaning Park Slope, Brooklyn, might have at one time disliked gays is to say nothing at all.

The more interesting question is what has caused the widespread shift in attitudes toward a greater acceptance of gays and their right to marry and why a similar shift hasn’t taken hold with respect to other groups and their ability to exercise fundamental rights.  Certainly lowering the “barriers” for the poor or even the middle class to affordable housing would increase the “sum total of human happiness”.  But why hasn’t such a change taken place, and with the kind of momentum and fanfare that has accompanied the gay marriage movement?

The answer perhaps lies in the fact that the process of conferring a right upon a group once denied to it to the exclusion of equally deserving groups is itself an exercise in discrimination.  The unspoken truth is that society is making a judgment that one group is more deserving or of greater worth than another.  Nothing has changed in the past few decades for gays or for the poor in terms of each group’s defining characteristics; if anything the destitution that has come to characterize the condition of being poor is even more pronounced today than it was ten, twenty years ago.  What has changed, however, is that the gay community has, as a whole, become more influential and affluent, even before it  started winning in the courts to solidify its status as an equal with heterosexuals.  It didn’t hurt that government officials pursued their anti-gay agenda with a kind of ferocity once reserved for blacks in the Jim Crow south.  Other groups that have not been able to remove the “barriers” to “happiness” that the gay marriage movement has been so effective in removing have failed in their efforts mostly because they remain an afterthought for most people.  The public might sympathize with their condition and their causes but by and large it will ignore these groups just as it once did with gays.

Recognizing that gays have a right to marry is a positive development.  But it shouldn’t be done in a kind of vacuum where the motivation for change is generated by the same kind of hysterics that prompted the government to ban gay marriage in the first place.  This is especially true for those who once rejected gay marriage as a fundamental right.  For  persons who fall into that category, and I imagine there are a lot of them,  it is just as important to figure out why they decided to switch positions.  The answer may not be a pleasant one but it is worth knowing nonetheless, if anything so that we can understand the true character of the society in which we live.

Dr. King and His Ideals in 2014

This year’s tribute to Dr. King has to do with this country’s economic well-being.  When a person talks about his own well-being it is often in the context of how he is feeling physically, mentally and emotionally.  When disease, injury or trauma occurs, then the saying generally is “I’m not feeling well”.  The same kind of self-assessment can and should be made for the country as a whole.  Indeed, our current president seems to know this well and will often make observations of the country’s poor economic health as a way to advance his political agenda.  His carefully prepared diagnosis is generally: too much inequality and not enough shared sacrifice.  And he will give this assessment the same way a doctor today would give his patient a diagnosis: mechanically and patronizingly.  But for something that is akin to cancer in its potential to disrupt and destroy, that is no way to motivate a populace to change its way, to say nothing of whether he even believes change is needed at all.

For years now, the country has been gripped by an increasing sense of economic insecurity.  One that says to a person if I don’t do this now, I will never be able to do it at all.  The thing that must be done, of course, is “make money”.  This mentality I think we can all agree has led to a lower quality of life than that which existed thirty, forty years ago.  Because, for all the additional material goods and technology that we now have that we didn’t have before, they do nothing to compensate for the time that one has to spend to make that extra dollar that he cannot spend with his family, his friends his community, and even himself (in the sense of self-reflection and self-improvement).

It is the kind of insecurity that has led to the creation of thousands of meaningless yet high-paying jobs where the only skill that is required is the skill to bullshit your way through meeting after meeting, and client after client, while doing everything you possibly can to protect your own turf.  It is meant to employ the un-employable, and in the process, give them a sense of self-worth, while doing nothing to teach them a skill which might make a difference when the government is on the brink of collapse or the next nuclear bomb hits.  Make no mistake, this is not a swipe at the so-called financial industry whose dispensability and frivolousness are already well-known to the general public.  It is directed to some of the most revered institutions, like higher education and public service, that have at one time made this country — even with its many moral failings — a symbol of hope for many around the world.

This sense of insecurity is not entirely irrational.  The growing gap between rich and poor, educated and uneducated, healthy and unhealthy has been thoroughly documented.  It isn’t news that the country is in ill-health and likely to get worse in the coming years.  And it is entirely predictable that people today have an almost messianic attitude about money and its healing properties: “get as much of it as you can now because soon there won’t be any left.  And if we can’t take care of ourselves, no one is going to do it for us.”.

The problem, of course, is that this just makes the problem worse.  The “me first” mentality further entrenches the rich at the expense of the poor.  That is because the ones who are most able to make it on their own are the ones who already have the means to do so.  What the current climate of insecurity has done is turn what were once blinders which the rich wore vis a vis the poor to full-blown hazmat suits.  See no evil, hear no evil, speak no evil, or so the saying goes.  In cities, this can be seen in “gentrification” which allow the rich to enjoy all the benefits of the city without the costs that necessarily come with living in close proximity to others.  In the suburbs, this can be seen in the proliferation of gated communities and private police forces.  The common theme of all this change is the rejection of the idea that we all provide for each other as well as for ourselves, rather than simply ourselves, an idea that led many to embrace Dr. King and the civil rights movement.

Few if any public figures mention these things.  To do so would make them a prime target for the “socialist” label and doom their careers.  But the ideals at issue are ones that need to be revived if the country is to heal itself from the economic and moral malaise with which it has been inflicted.  Dr. King recognized that, and history has proven his work valuable even if its effects have been limited (not through any fault of his own).  And we must as well, for the alternative is at once unfathomable but all too familiar.

Judge Martin and the Eleventh Circuit

The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings.  One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right.  Another case,  United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case.  In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.

In each of these three cases, Judge Martin ended up on the side of the immigrant.  She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning.  As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising.  But one’s past experience is not always a reliable predictor of future action.  In fact, the two sometimes have no discernible correlation; Obama is a good example of that.

It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead  alienates them.  If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.

Stop and Frisk Writ Large

The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.

The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue.  The case is United States v. Kareen Rasul Green (No. 11-1558).  Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms.  Interestingly, she discussed the relevance, or irrelevance as the case may be, of  a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop.  According to Judge Barkett:

[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk.  The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk.  This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”

Judge Barkett does not stop there, however:

Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks.  In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.”  The Terry [v. Ohio] decision  itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.”  Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.

I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which can be downloaded here.

Ralph Ellison Turns 100

Photo of Ralph Ellison courtesy of California Newsreel

Photo of Ralph Ellison courtesy of California Newsreel

On March 1, 1913, Ida Millsap gave birth to Ralph Ellison whom she and her husband named after Ralph Waldo Emerson.  Ellison would go on to become a notable figure in his own right after writing and publishing The Invisible Man, in which he chronicled the journey of a young black man much like Ellison himself who left the Jim Crow South for New York’s Harlem only to find disillusionment wherever he went.  The title of this blog belongs, of course, to Ellison’s novel and the difficult theme it sought to explore on how the history of an “invisible” minority  is dealt with and reflected in modern American life.  In tribute to the Ellison centennial, The New York Review of Books has posted some pieces about Ellison which have appeared in the publication.  The tribute begins with the following quote from Ellison:

Perhaps more than any other people, Americans have been locked in a deadly struggle with time, with history. We’ve fled the past and trained ourselves to suppress, if not forget, troublesome details of the national memory, and a great part of our optimism, like our progress, has been bought at the cost of ignoring the processes through which we’ve arrived at any given moment in our national existence.

Those interested can read more of NYRB’s tribute to Ellison here.

A Pictures Is Worth A Thousand Words (Or, If You’re Justice Sotomayor, More Than A Whole Slew of Statistics)

Today the Supreme Court hears oral arguments in the much-publicized case of Shelby County, Alabama v. Holder. Some have described the case as having the kind of ramifications for the Voting Rights Act that Citizens United had for campaign finance laws: law that was once settled and based on sound reasoning has now come under imminent threat of upheaval.

On Monday, Justice Sotomayor issued a “statement” in a case, Bongani Calhoun v. United States, No. 12-6142, involving the racist remarks of a federal prosecutor in Texas. The statement came as the Court declined to hear the case for mostly procedural considerations, but Justice Sotomayor felt it necessary to write separately so she could “dispel any doubt” that the Court’s decision “be understood to signal [the Court’s] tolerance of” the “racially charged remark.” “It should not,” Sotomayor bluntly stated. After taking the Government to task for its conduct, both with respect to the remarks and to the way it approached the case as it wound its way to the Court, Sotomayor ended her statement by warning or perhaps lamenting that she “hope[s] never to see a case like this again.” Only Justice Breyer joined Sotomayor in her statement.

That Sotomayor decided to issue such a statement at this particular time in the Court’s sitting is not, I submit, a coincidence. Instead, Sotomayor’s brief yet emphatic statement may have been her way of alerting her colleagues on the bench that now is not the time to be tinkering with or, worse yet, altogether scrapping the prophylactic measures that have been enacted to protect minorities from the kind of racism that, to Sotomayor, is as much a part of America as baseball, apple pie and barbecued ribs. And she did so in vivid almost picturesque fashion, none of which can really be captured in the raw data and statistics that will be thrust at the Court as it considers whether to overturn the Voting Rights Act, or at least a key part of it.

True, Sotomayor’s colleagues may decline to heed her warning or disagree with her view that things are still as they were back when Congress first passed, and then continued to renew, the Voting Rights Act. But even in pure temporal terms, we are only a mere 50 years removed from a time (1963; the Voting Rights Act was passed in 1965) when many thought that the country could not survive as a democracy without measures like the Voting Rights Act — a time when George Wallace, Alabama’s then Governor refused to de-segregate the University of Alabama, in direct defiance of President Kennedy and and a time when an owner of a segregated restaurant in Maryland felt fit to physically humiliate individuals who knelt in front of his restaurant to call attention to their message of integration. (These pictures are from a series of 50 photos taken in 1963 that was recently posted on the website for The Atlantic.) To argue that such racism, or more appropriately, its remnants has been purged from the fabric of this country is at best inaccurate and at worst irresponsible. Knowing that this view will probably not hold sway with the majority of the Court, however, my thoughts turn to those, like the Maryland protestors, who through their dedication and sacrifice helped put on the books laws like the Voting Rights Act, and without whom our country would be even more segregated than it was in 1963.