Tuesday, May 06, 2008
Today's newspapers carry the obituary for the somewhat accidental civil rights pioneer Mildred Loving, who died last Friday at 68. Loving and her late husband Richard were the plaintiffs in one of the most important civil rights cases ever to reach the Supreme Court. Their exquisitely- and aptly-named case, Loving v. Virginia, brought what was essentially an "equal protection of the law" challenge to a Virginia state law that not only banned but also criminalized interracial marriage. The court unanimously declared that Virginia's anti-miscegenation law was unconstitutional because it violated the Fourteenth Amendment's requirement that state laws not discriminate on the basis of race.
The Supreme Court's decision in Loving was a triumph for not only the Lovings, but for the rights and freedoms of all citizens: it determined that states could not prohibit people from marrying whomever they loved just because they happened to be of a different race. Though the Lovings lived in Virginia, they got married instead in Washington D.C., which did not have an anti-miscegenation law. However, Virginia's law provided that out-of-state interracial marriages were invalid in Virginia. Several weeks later, on July 11, 1958, the New York Times reports, they were arrested in bed for having violated Virginia's Racial Integrity Act. After they pled guilty, they moved to Washington to remain together, but eventually "could stand the ostracism no longer." The ACLU brought their case to the Supreme Court -- and, nine years after they were arrested, the Lovings won.
The entire nation owes a huge debt to Mildred Loving, an unassuming litigant who wanted to marry and live with the man she loved -- and to do so in the community she called her home. Several years ago, at the height of the controversy centering on the Massachusetts Supreme Judicial Court's decision declaring marriage (including gay marriage) a right protected by the state's constitution, I wrote in the Boston Phoenix that the road to equal marriage rights in Massachusetts was paved by Mildred and Richard Loving. The Supreme Court was right in 1967 to ensure marriage rights to interracial couples, and the Massachusetts SJC was right in 2004 to ensure marriage rights to same-sex couples. Our society has come a long way since the time of anti-miscegenation laws, but anti-same-sex-marriage laws like the federal Defense of Marriage Act infringe gay Americans' rights just as fundamentally as Virginia's old law once did. And when one group of citizens is treated differently under the law from others, for no demonstrable reason based in logic and experience, equality under the law cannot be said to prevail. I predict that someday courts all throughout the country will recognize that these laws raise very similar constitutional questions as did the law challenged in Loving v. Virginia. For that, the Lovings will again – or still – merit our thanks. May these modern-day heroes for liberty and equality rest in peace.
Thursday, April 24, 2008
Back in January, Wendy Kaminer posted here about a federal case in which a high school student was challenging her school's decision to suspend her for wearing a shirt that said "Be Happy, Not Gay." Following up on that post, the U.S. Court of Appeals for the Seventh Circuit decided yesterday ( read opinion here) that another student (the original girl had since graduated, making her ineligible to sue) who wanted to wear the shirt could do so. Specifically, the court was willing to issue a narrow preliminary injunction, limited to temporarily overriding the school's rule that bans students from wearing a shirt that says "Be Happy, Not Gay" on the "Day of Truth" -- a day of counter-protest following the school's pro-gay-students "Day of Silence." In his majority opinion, Judge Richard Posner predicted that this wouldn't be the end of the lawsuit, and that the students would seek to get broader and more permanent protection for their anti-gay speech. If there's more action in this case, we'll be following it. Hat tip: Decision of the Day.
Thursday, February 14, 2008
By Wendy Kaminer,
Is the animosity of civil libertarians toward Supreme Court justice Antonin Scalia, “misguided,” as Harvey suggests below? Not hardly; and it is not simply based on Scalia’s opposition to gay rights and reproductive choice, as Harvey implies. While I agree that Scalia's recent remarks about torture are not grounds for impeachment, I don't suspect him of being a closet civil libertarian. Scalia has, at very best, a mixed record on free speech, criminal justice, religious liberty, and the rights of non-citizens.
Consider these cases:
In Hamdan v Rumsfield, Scalia endorsed the denial of habeas rights to Guantanamo detainees. (He has shown more consideration for the rights of American citizens on American soil, ruling in Hamdi v Rumsfield that a citizen held for more than two years in a navy brig had a right either to be charged and tried in a criminal court or set free – unless Congress suspends the writ of habeas corpus; it had not done so in this case.)
In Kansas v Marsh, Scalia joined the majority in reversing a decision by the Kansas Supreme Court that invalidated the state’s death penalty statute because it mandated imposition of a death sentence when aggravating and mitigating factors were found to be “in equipose.” Not content simply to join Justice Thomas’s majority opinion, Scalia went to the trouble of filing a concurrence defending the death penalty, summarily dismissing concerns about convicting and executing the innocent. Never mind that the Court has refused to consider evidence of racial bias in capital sentencing (in McClesky v Kemp,) set the bar low for competent counsel in capital cases (in Strickland v Washington,) and held that “A claim of ‘actual innocence’ is not itself a constitutional claim,” (in Herrara v Collins.) Scalia praised the “sensitivity of the criminal justice system to the due process rights of defendants sentenced to death” and asserted that the possibility of mistakes “has been reduced to an insignificant minimum.”
In McCreary v ACLU, Scalia dissented from a ruling invalidating an official display of the Ten Commandments, arguing that the Constitution does not mandate government neutrality toward religion. The First Amendment “permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists,” he declared.
In Morse v Frederick, Scalia joined the majority in greatly restricting the speech rights of high school students. Morse involved the suspension of a student for unfurling a banner reading, "Bong Hits 4 Jesus" at an off campus, school sponsored event celebrating the Olympic torch relay. He was suspended for violating the school’s anti-drug policy – merely by holding this nonsensical sign.
Finally, in Romer v Evans, Scalia did not just make clear his opposition to gay rights, voting to uphold a state constitutional amendment that invalidated laws prohibiting discrimination based on sexual orientation. He made clear his contempt for gay people, effectively comparing homosexuality to murder: “I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could even exhibit ‘animus’ toward such conduct,” Scalia sneered. “Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct…”
Surely this is not the perspective, or the record, of a civil libertarian.
Thursday, November 08, 2007
By James F. Tierney
Last week the family of a U.S. marine who died in Iraq won a $10.9 million award against members of the Westboro Baptist Church for picketing outside the soldier’s funeral, bearing signs reading “God Hates Fags.” (They “argue” that U.S. servicemen and women are dying in Iraq because God is punishing the U.S. for its tolerance of gay people.) Law professor Eugene Volokh makes a convincing argument that the verdict is unconstitutional. The case is now expected to go to the Fourth Circuit, which will consider whether the award will be overturned. We’ll keep an eye on this one.
(Update, Nov. 12, 2007: this post has been edited from the original.)
Wednesday, November 07, 2007
By Wendy Kaminer
Anyone who has yet to be convinced that the term “faith-based” social services is a euphemism for sectarian social services should consider that the Bush Administration has directed 98% of “faith based” foreign aid funds to Christian groups (according to a 2006 report by the Boston Globe.) That should come as no surprise. It’s not as if we’re a country of Deists, or even Unitarians, with vague or “inclusive” theologies. Institutionalized religious faith is specific and generally exclusive. It’s a divider, not a uniter, which is why religious freedom requires restraints on government power to favor one faith over another – which the government can’t avoid doing when deciding which faith based groups to fund. Naturally, the Bush Administration chose Christian groups, including those that prefer not to hire gay people or people of contrary religious faiths.
“Faith based” funding” came into vogue some ten years ago, when Congress enacted charitable choice legislation extending federal funding to sectarian social services groups. (Previously, charities affiliated with religious institutions were eligible for public funding if they were independently operated and did not engage in sectarian activities.) Since then, sectarian groups seeking federal funds have also demanded the same exemptions from employment discrimination laws that have long been enjoyed (for good reason) by privately funded religious institutions. Obviously, religious groups must engage in employment discrimination when filling religious posts, in order to maintain their religious character: it’s up to the Catholic Church, not the state, to decide whether to allow women to become priests.
But it should be equally obvious that when sectarian groups undertake secular activities that are funded by the secular state, they should play by secular rules of fairness and non-discrimination in hiring. Religious organizations have successfully established their right to receive federal dollars for delivering social services by arguing that they should be treated like secular service providers. If they want, and obtain, the same rights as secular organizations, shouldn’t they be prepared to shoulder the same obligations?
Not according to the Bush Administration. Congress has generally resisted exempting government funded, sectarian social service providers from employment discrimination laws, but Congress has hardly been an effective check on this executive. Just last month, the Justice Department recommended that sectarian groups receiving federal funds should be allowed to discriminate in hiring, under the Religious Freedom Restoration Act.
RFRA, enacted in 1993, greatly limited the power of government to subject religious people and organizations to generally applicable laws, if they imposed substantial burdens on religious exercise. A few years later, in 1997, the Supreme Court held that RFRA was unconstitutional as applied to the states, but it still applies to the federal government.
What constitutes a substantial burden on religion? Extending equal rights to gay people, according to some religious conservatives. Given the generation gap on gay rights, 20 or 30 years from now zealous opposition to full equality may well seem rather primitive. Indeed, the insistence that sexual orientation should be a basis for extending or denying rights to people seems incrementally more anachronistic every day.
But the Bush Administration isn’t exactly forward looking; not content to allow federally funded religious groups to discriminate against gay people, it wants private businesses to enjoy the same prerogative, under federal law. The president has promised to veto the Employment Non-Discrimination Act pending in Congress, (ENDA) which would protect people from employment discrimination based on sexual orientation. (Advocacy groups are battling Congress over extending these protections to transgendered people as well, but that’s another story.)
On what basis would the president veto ENDA? (He can’t quite come out and say that all people are created equal, gay or straight.) The White House is arguing, or rather declaring, that ENDA would violate the right to free exercise of religion as guaranteed by (take a guess) the Religious Freedom Restoration Act. A law designed to guard against religious discrimination has devolved into a law empowering religious people to discriminate – with federal funds, in the secular sphere.
Someone should ask the President if he believes that the 1964 civil rights act violates the religious freedom of employers who believe that racial segregation was divinely ordained or that God wants women to stay home. Arguments like this did not prevail in the 1960s but, as I’ve said, the Bush Administration isn’t forward looking.
Friday, August 31, 2007
It’s long been apparent from Mitt Romney’s opportunistic political career that he lacks both courage and conviction (except perhaps for a sincere belief in his own goodness and entitlement to power.) So his swift and spineless denunciations of Larry Craig are no surprise, although as Harvey stresses in his post below, the comparison of Romney to both Lyndon Johnson and Barry Goldwater, who made a principled decision not to engage in gay bashing given a similar opportunity (in a much less tolerant era,) is instructive. (Covering the story in Slate, John Dickerson notes, “Mitt, You’re no Barry Goldwater.”)
Still, even in the wake of Romney’s gratuitous description of Craig as “disgusting,” I can’t quite bring myself to feel sorry for the embarrassed, soon to be former Senator, given his entirely voluntary participation in a regime that denies gay people the rights and respect he enjoys as at least a faux heterosexual. There’s some rough justice in his ensnarement in the web of homophobic laws and customs that he helped weave.
It is, however, hard to ignore the underlying injustice of a legal system that sends police officers into public bathrooms, hoping that some unfortunate gay males will solicit them. Why should it be illegal for adults to seek out sexual partners in public bathrooms, or other spaces? Should we start arresting people in singles bars? Should heterosexuals be forbidden to meet and engage in their own coded sexual come-ons in public parks, beaches, or airline terminals? Should we assign police officers to Amtrak trains in the Northeast corridor to ensure that no strangers begin conversations in Boston that seem likely to lead to sex in New York?
Defenders of the sting that stung Craig may reply that it’s public sex, not public pickups, that are legitimate public concerns. Maybe so. Engaging in public sex, you effectively appropriate a public space, by strongly discouraging other people from using it, (although, personally, I’d rather picnic near a couple having sex than a couple with a boom box.) But Craig wasn’t arrested for engaging in sex; he was arrested for signifying an interest in engaging in sex. If laws against that were enacted and indiscriminately enforced, than even Mitt Romney would likely have broken them.
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