“The Right Defends A New Jim Crow”: 50 Years Since The Civil Rights Act, Wingnuts Still Don’t Get It
Watching the debate over Arizona’s SB 1062 (better known as the state’s anti-gay Jim Crow law) unfold this past week, I couldn’t help but think of the already iconic line from Matthew McConaughey’s “True Detective” character Rust Cohle: “Time is a flat circle.” As is always the case with the nihilistic and willfully esoteric Cohle, it’s not entirely clear what he’s trying to say with the metaphor, but we get the gist: Like Nietzsche’s “eternal return,” Cohle’s flat circle theory holds that all of us are destined to relive every moment of our conscious lives, forever. It’s as if we all were stuck in the late Harold Ramis’ “Groundhog Day,” but instead of repeating a single day, we repeat our entire lives.
Beyond the fact that, like many others, obsessing over “True Detective” has increasingly become the chief way I spend my free time, Arizona’s brief foray into the politics of segregation reminded me of the flat circle quote because I had recently seen Bryan Cranston’s Broadway debut, “All the Way,” in which the “Breaking Bad” star plays former president Lyndon B. Johnson during the historic period between Kennedy’s assassination and Johnson’s reelection, a time when the 36th president was working feverishly to ensure the passage of the Civil Rights Act of 1964. The play is good and Cranston is great, but what was most striking throughout was how much Johnson’s opponents then sounded like SB 1062’s supporters today. It was, as Cohle would say, some “heavy shit.”
The similarities weren’t merely superficial, either. Sure, the play, written by Pulitzer prize-winning playwright Robert Schenkkan (who obviously did his homework), was littered with hysterical charges of “fascism” and “socialism” and “big government” from no-name Dixiecrats that most of us never knew or were happy to forget. And of course these moments brought to mind much of the anti-Obamacare rhetoric that has emanated from conservatives during the past five years. But the parallels went deeper than that. It wasn’t just the language that sounded so familiar, but the logic behind it, too. Whether conservatives were defending Jim Crow proper or the Southwest’s latest variant, their worldview, all these years later, was disturbingly unchanged.
To explain what I mean, allow me to cite two of conservatism’s leading lights: Kentucky Sen. Rand Paul and all-around media mogul Glenn Beck.
As the opposition to SB 1062 increased in fervency and numbers, the usually loquacious Paul was, unlike his fellow Senate Republican John McCain (who opposed the bill), deafeningly mute. Anyone familiar with Paul’s history knows why: Because the obvious presidential aspirant wanted to avoid reminding people of the unfortunate 2010 interview with Rachel Maddow in which he stated that, even today, he would not support the government-run dismantling of Jim Crow. “I don’t want to be associated with those people,” Paul said, referring to white supremacists who’d bar blacks from their restaurants, “but I also don’t want to limit their speech in any way…” Paul’s orthodox libertarianism told him that the freedom to discriminate was too valuable, too sacred, to let the federal government stand in its way. Like Sen. Barry Goldwater did in 1964, when he voted against the Civil Rights Act, Paul argued that the Constitution had no room for anti-discrimination.
Roughly four years later, Glenn Beck made a similar argument, this time in defense of SB 1062. After doing his best impression of Hamlet, grappling aloud with his competing interest to not be a bigot while on the other hand maintaining allegiance to his understanding of liberty, Beck cut to the chase, telling his coworkers that he could only support Arizona’s bill, because “freedom is ugly.” Like Paul, Beck was sure to make clear that he held no sympathy for anyone who would ban LGBTQ people from their premises. But also like Paul, Beck had no choice but to conclude that the freedom to ostracize and discriminate was, in part, what the American experiment was all about. “I don’t like that world,” Beck said, “but that’s freedom! That’s freedom! Freedom is ugly. It’s ugly.”
High-profile though they may be, Beck and Paul are hardly the only conservatives who still cling to a vision of freedom that many Americans wrongly thought was swept into Reagan’s “ash-heap of history” decades before. Tucker Carlson — who, if Paul is to be Goldwater, we must describe as today’s version of the braying, segregationist Dixiecrats — was adamant in his defense of SB 1062, saying on Fox News that opponents of the bill were advocating for “fascism” and had gone “too far” in their quest to prevent state-sanctioned bigotry. “Everybody in America is terrified to tell the truth,” Carlson warned, “which is, this is insane, this is not tolerance, this is fascism.” Tellingly, when his sparring partner, Fox’s house liberal, Alan Colmes, asked Carlson whether he would have supported the Civil Rights Act, the editor of the Daily Caller could only respond by saying, “Don’t bring [that] into this,” with a sneer.
Even conservatives who are more intellectually inclined than Beck, Paul and Carlson put forward a defense of SB 1062 that could easily and quickly be adopted to oppose the federal government’s dismantling of Jim Crow. Ilya Shapiro of Cato, libertarianism’s premiere think tank and ostensible guardian of liberty for all, wrote, “I have no problem with SB 1062.” Repeating an argument that was offered by Goldwater, Paul, Beck and Carlson, Shapiro maintained that those who would be discriminated against, were SB 1062 to pass, should simply trust that the free market would punish bigots and, eventually, guarantee their liberty. “[P]rivate individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds,” Shapiro wrote. “Those who disagree can take their custom elsewhere and encourage others to do the same.”
The fact that this very same logic recently undergirded a century of Jim Crow seemed to escape Shapiro. Either that or he, like W. James Antle III of the American Conservative, was content to dismiss comparisons to Jim Crow on the grounds that Arizona is not the Jim Crow South and 2014 is not the mid-’60s. “People often argue for or against the civil-rights laws of the 1960s on the basis of abstract principles,” Antle wrote, “but they were in fact a reaction to a very specific set of circumstances.” (This is an argument that, more than anything else, raises the question as to whether this is the first time Antle’s come into contact with an analogy.) Perhaps Shapiro, like Antle, was content to support the bill not because it wouldn’t give the government’s imprimatur to homophobia, but because such an outcome is, in their minds, “not very likely.” After all, what’s a little discrimination in the grand scheme of things?
If we put all these and many other conservative defenses of SB 1062 together, it’s hard not to reach a clear and unsettling conclusion: While conservatives themselves have largely given up the racism that coursed through a previous generation’s defense of Jim Crow, conservatism itself has learned no enduring lesson from the Civil Rights Movement and has made no ideological adjustments as a result. Indeed, National Review’s Kevin Williamson recently declared that Goldwater’s brief against the Civil Rights Act “has been proved correct” for worrying that “expanding the federal mandate … would lead to cumbrous and byzantine federal micromanagement of social affairs.” Going further, National Review’s editors, writing on the 50-year anniversary of the March on Washington (which NR at the time opposed) would only concede that the magazine was wrong to oppose the Civil Rights Movement because its principles “weren’t wrong, exactly” but were instead “tragically misapplied.”
For all of her many flaws, Jan Brewer decided on Wednesday to refrain from applying her conservative “principles” in such a “tragic” manner, opting instead to veto the bill and maybe — just maybe — push her party that much closer to joining the rest of us in the 21st century. And while many conservatives received the veto as a crushing disappointment, or even a step toward “slavery,” I’d caution my right-wing fellow citizens against slipping into outright despair. If the events in Arizona have taught us nothing else, they’ve shown that time is indeed a flat circle; future right-wingers will have plenty of chances to keep getting this most basic question of freedom terribly, terribly wrong.
By: Elias Isquith, Salaon, March 1, 2014
The writing was on the wall all week. Arizona Gov. Jan Brewer had no choice but to veto SB 1062, which would have let businesses discriminate against gay patrons (and presumably others) on religious grounds. The veto was demanded by businesses: from the NFL, sponsors of the Arizona-bound 2015 Super Bowl, to Apple to American Airlines to JPMorgan Chase. Even GOP lawmakers who voted for the bill began quailing and taking back their votes shortly after casting them.
Brewer, who has shown independence from her Tea Party base before, particularly on accepting Medicaid expansion, proved to be up to this challenge, too.
The Arizona Tea Party governor vetoed the bill, she said, because of its “unexpected and unintended consequences. The legislation seeks to protect businesses,” she wrote, “yet the business community overwhelmingly opposes the proposed law.” The bill, she said, “could create more problems than it purports to solve.”
Indeed. The proposed Arizona law shows how quickly America’s corporate leaders, and even some Republicans, have counted dollars and counted votes and realized that power lies with gay people and their straight allies who can’t stand anti-gay bigotry – and won’t patronize those who are selling it.
Even as Arizona Republican politicians like Sens. John McCain and Jeff Flake declared their enduring fealty to the sanctity of man-woman marriage, they could oppose SB 1062 because of the business backlash. This is a stunning turnaround from 10 years ago, when Karl Rove encouraged Republicans to put anti-gay-marriage measures on state ballots to turn out the right and buoy George W. Bush’s reelection against John Kerry in 2004. There was no downside for Rove 10 years ago.
That was the same year that San Francisco Mayor Gavin Newsom became persona non grata even to some Democrats for legalizing gay marriage in San Francisco. From Dianne Feinstein to Barney Frank, Newsom got pummeled for promoting too much gay freedom too soon. But just 10 years later, a far-right governor of a changing but still conservative state thinks she has to veto this gay Jim Crow law that businesses are smart enough to oppose.
Let’s celebrate. But let’s also look plainly at how Democrats have won the culture war but are still fighting a grim conflict over economic populism – including, sometimes, against other Democrats. I look forward to the day when businesses lobby for a hike in the minimum wage and universal preschool and higher tax rates for those at the very top, and Republicans like Jan Brewer face the fact that they have to relent. It may be a long time coming. But let this victory remind us what a difference even 10 years can make, on an issue that was once a loser for Democrats. May we catch up on issues of poverty, income inequality and economic opportunity just as quickly.
By: Joan Walsh, Editor at Large, Salon, February 27, 2014
Awaiting signature on the desk of Arizona Governor Jan Brewer is a bill that might be the most insidious attack on LGBT rights to ever pass both houses of a state legislature. SB1062 would allow anyone—be it an individual, association, partnership, corporation, church, religious assembly, foundation, or other legal entity—to deny services to others simply by asserting their religious beliefs. Interpreted broadly, the bill could override many equal protection clauses in Arizona law, including civil rights: A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus, or Muslims.
Republican legislators have made the intended target of the bill clear in their statements, repeatedly citing a New Mexican photographer who was sued when he refused to shoot a lesbian couple’s commitment ceremony. They claim the bill’s detractors are exaggerating its possible effects and are demonstrating hostility towards people of faith. But there is ample reason to believe that a law like this would open the door to discrimination. Once laws are passed, people who may otherwise be afraid of engaging in questionable behaviors may feel emboldened to do so. Moreover, these laws will likely be used by juries as legitimate reasons to dismiss cases against future defendants—after all, the law is the law.
The perfect case in point for all of this? The stand-your-ground laws which have been enacted in several states across America.
These laws were ostensibly passed to protect citizens from criminals by removing the need to retreat or escape when attacked, the rationale being that criminals would think twice knowing that their victims could legally defend themselves with proportionate force. And yet SYG defenses have been used with alarming frequency, and in scenarios unimaginable when these laws were passed, including by drug dealers and gang members. States which have enacted SYG laws have seen an 8 percent rise in “justifiable homicides,” possibly indicating that those with knowledge of the law are willing to take chances in situations where the law might apply.
Furthermore, SYG defenses are shockingly successful. Seventy percent of people who have invoked the defense have avoided prosecution. In fact, SYG laws seem to have tilted the odds in favor of the shooter: In states that have it, 13.6 percent of homicides have been ruled justifiable, while in those that don’t, only 7.2 percent have been deemed such. Unsurprisingly, the success of a SYG defense has a decidedly racial bias—white-on-black killings are far more likely to be deemed “justified” than any other kind.
What does this all mean for bills like SB1062? Granting people the legal right to invoke religious beliefs to justify their right to refuse service will embolden many people who might have otherwise been afraid to do so. Moreover, the defense could end up being a largely successful one. Certainly jurors who might already be biased will be unafraid to side with the defendants, but even those who might not agree with the law will be hard pressed not to accept its validity; should a defendant make a somewhat rational case for why their religious beliefs would be violated by providing these services, the jurors would be forced by the law to acquit. The law would not only provide cover to judges and juries who might otherwise harbor sentiments against the defendants for whatever reason, but would even compel those who aren’t biased to rule in favor of the accused parties.
Many have compared these laws to the gay propaganda bill that passed in Russia last June, some expressing dismay that such laws could be enacted here in America. In the sense that the Russian law seems to have emboldened many Russians to hunt down LGBT people (a law recently passed in Nigeria seems to doing the same thing), it’s not hard to draw the same conclusions here. These Republican legislators claim to want to protect people of faith, yet they did not invoke a single legitimate instance where a person’s freedom of religion is compromised by having to serve others. Purporting to be against discrimination, these lawmakers are trying to use the victim card against the very people they want to discriminate against. Yet there is a tacit social contract we all sign in pluralistic societies: Even when we do not agree with everyone’s beliefs or lifestyles, we still agree to treat each other fairly.
There’s something vaguely desperate about these laws, the last gasp of a cause aware that it’s dying. They are unlikely to pass constitutional muster; they hardly seem to be trying to do so. In all likelihood, Brewer will veto SB1062. As law, it would not only cause a ridiculous pileup in the courts but could tear at the social fabric of the state, exposing certain prejudices that best remain hidden—the landmines are too numerous for the governor to risk so late into her term. Still, this will hardly be the last we hear of these dubious “religious freedom” arguments. Every step in the civil rights movement was met with resistance. Now that the push for LGBT rights has gained such momentum, the backlash will only get stronger.
By: Eric Sasson, The New Republic, February 24, 2014
Arizona is a place where you can get a family photograph with Santa holding an AK-47, where state lawmakers point pink pistols at reporters, and where men tote AR-15s to political protests. And if one state representative gets his way, gun-loving Arizonans won’t have to worry about pesky federal gun control laws, because it will be illegal to enforce them.
Republican state Rep. Steve Smith proposed a bill last week that would prohibit public officials in the state from following any federal gun laws or regulations, fearing an effort by the Obama administration to impose harsh new restrictions on firearms. That means no background checks, no restrictions on automatic weapons or grenade launchers, and no prohibition on sale to the mentally ill, unless the state enacts its own restrictions, none of which are laid out in Smith’s bill.
While there is no penalty specified for state and local officials who follow federal law, federal judges or law enforcement agents would face felony charges punishable by up to a year in state prison. “Here’s a line in the sand: Thanks, but no thanks. Stay out with your federal regulations you’re going to impose on us,” Smith said.
HB 2291 would almost certainly be unconstitutional, as federal law trumps state law, and Smith acknowledged that there would probably be legal challenges that would have to be worked out in the courts. But he appears to be trying to get around this problem by making his legislation apply only to firearms that are manufactured in and never leave the state of Arizona, presumably in an attempt to thwart the Commerce Clause, which allows Congress to regulate interstate trade. Still, the Supreme Court has not been sympathetic to similar arguments.
And the Constitution isn’t Smith’s only problem; he’s catching some friendly fire too. Todd Rathner, an Arizona resident who sits on the board of the National Rifle Association, told the Capitol News Service that he doesn’t like the bill because of what it would do to gun dealers, who must receive federal licenses and comply with federal regulations.
“I worry about putting federal firearms licensees in the middle of a fight between us and the federal government,” he said. “It puts them between a rock and a hard place because they worry about committing a federal crime or a state crime.”
Indeed, Smith’s law specifies that firearms dealers would be barred from following the regulations mandated by the federal government to maintain their license. Still, Rathner said of Smith’s proposal, “I like the message he’s trying to send.”
Arizona isn’t the only state considering what amounts to a lite form of secession over guns. In Mississippi, Gov. Phil Bryant and state House Speaker Philip Gunn have both said they intend to block any new Obama executive orders on gun control. South Carolina lawmakers have made similar moves as well. But Arizona’s law goes much further, by not only restricting new regulations but also all existing ones, targeting “any act, law, statute, rule or regulation” from Washington on guns.
Also, keep in mind that the NRA’s objection to the legislation is not that it is unconstitutional or that it might make it easier for criminals to acquire weapons, but that it would hurt firearms dealers. If Smith rewrote the law to exempt dealers, one wonders if the NRA would be OK with the rest of it.
By: Alex Seitz-Wald, Salon, January 23, 2013
Arizona’s frustration with our nation’s dysfunctional immigration system is understandable. But its restrictive “show me your papers” immigration law is unconstitutional and un-American.
The U.S. Constitution protects and safeguards our most fundamental rights—the rights that are the bedrock of our freedom and democracy. Each of us has the right to be treated equally and fairly, and to not be discriminated against on the basis of the color of our skin or the accent with which we may speak.
Arizona’s law violates these precious Constitutional protections. Already, in Arizona and other states with “show me your papers” laws, U.S. citizens who don’t happen to carry proof of their birth in the United States in their back pockets are being treated with suspicion and are facing arrest and detention until they can convince law enforcement authorities of their citizenship. This racial profiling and assault on personal freedom and security is both unconstitutional and un-American.
The U.S. Constitution was also written to safeguard and protect our fundamental character as a nation of united states. In areas where it is important for states to determine their own policies, the Constitution protects states’ rights. But in areas where it is important that our nation speak with one voice, the Constitution prohibits states from taking matters into their own hands.
Immigration is one of those areas involving our country’s relations with foreign countries and nationals where our nation needs to speak with one voice. Just as states cannot sign their own treaties with, or declare war on, other countries, so too states cannot enact their own immigration laws. If they could, the resulting patchwork of 50 different state laws would lead to confusion, conflict, and chaos.
Other nations would retaliate and treat U.S. citizens unfairly as they travel, work and study abroad. Citizens and immigrants alike would flee from one state to another, seeking freedom from discriminatory laws. Businesses would leave states where their workers and visiting foreign managers were subject to intrusive police demands for “papers.”
The United States could not survive as two nations—one slave, one free. Neither can the United States accommodate two sets of immigration laws—one that requires the Department of Homeland Security to enforce the laws that Congress enacts, and the other that requires all of us, citizens and immigrants alike, to “show me your papers.”
By: Jeanne Butterfield, Special Counsel, Raben Group, Published in U. S. News and World Report, April 23, 2012