“Dignity Is A Constitutional Principle”: Institutionalized Humiliation And The Constitutional Requirements Of Equal Protection
With gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.
In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.
Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.
As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.
On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.
This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.
This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?
Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
By: Bruce Ackerman, Professor of Law and Political Science, Yale University; Opinion Writer, The New York Times, March 29, 2014
“A Blatant Violation Of Civil Rights”: When ‘Religious Liberty’ Was Used To Deny All Health Care To Women And Not Just Birth Control
On Tuesday, the Supreme Court will hear Hobby Lobby’s and Conestoga Wood Specialties’ claims that they should be exempt from their legal obligations to provide a full range of health coverage — in this case, contraceptive care for women — because they object to providing this coverage on religious grounds. Yet, for women who worked for a California private school in the 1980s, this lawsuit must feel like déjà vu. Nearly three decades ago, the Fremont Christian School claimed a similar right to deny health coverage to its female employees, citing its religious beliefs as justification for doing so. Fremont Christian’s case does bear one important difference from Hobby Lobby’s, however, they did not just want to deny birth control to their employees — they wanted to deny all health coverage to many of the women in their employ.
Fremont was owned by a church which claimed that “in any marriage, the husband is the head of the household and is required to provide for that household.” Because of this belief, they had a very unusual compensation package for their employees — though Fremont offered a health plan to its workers, the plan was only available to “heads of households” which Fremont interpreted to mean single people or married men. When a woman became married, she was to rely on her husband for health care.
(In what Fremont described as an “act of Christian charity,” there was an exemption to this rule. A married woman could receive health benefits if “the husband is incapable of providing for his family, by virtue of non-working student status, or illness” though the school also emphasized that “the husband is still scripturally the head of the household.”)
Offering one set of employee benefits to men and a different, inferior package to women is a blatant violation of federal civil rights law, which prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” While Fremont claimed that their religious liberty gave them a trump card, a federal appeals court disagreed. “Congress’ purpose to end discrimination,” the court explained, “is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.”
So could a victory for Hobby Lobby and Conestoga Wood cause the courts to rethink Fremont Christian? Probably not. Society’s compelling interest in eradicating discrimination against women is widely accepted, even by conservative judges, and Fremont Christian is an extreme case. Nevertheless there is reason to be concerned about what happens with religious employers who push the envelope only slightly less than Fremont Christian School did.
The Supreme Court has long recognized that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” But a decision in Hobby Lobby and Conestoga Wood’s favor would place courts in the awkward position of picking and choosing among religious faiths. What happens to sects of the Jehovah’s Witness faith, who have religious objections to blood transfusions? Or to faiths that object to certain vaccines? Or to Scientologists who object to psychiatry? Or to Christian Scientists who object to modern medical science altogether?
If Hobby Lobby wins, are these faiths now empowered to deny health coverage to their employees as well? And if not, why not? If the Court rules in Hobby Lobby’s favor, it will either need to abandon its longstanding neutrality among religions, or it will need to allow every sect to exempt itself from health coverage laws that it does not want to follow — including, potentially, sects like the one in Fremont Christian. Moreover, Hobby Lobby’s brief argues that any law burdening an employer’s religious exercise must survive “the most demanding test known to constitutional law.” That is not a good position to be in if your employer objects to blood transfusions or mental health care.
Although there is a superficial basis for Hobby Lobby’s argument, they are asking the Court for a massive shift in the law. For decades, the Supreme Court has respected the principle that one person’s religious liberty stops at another person’s body — and this is especially true in the business context. As the Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” If the law were otherwise, Lee warned, employers could “impose” their “religious faith on [their] employees.”
Any decision favoring Hobby Lobby and Conestoga Wood will have to drive a massive hole through Lee. The essence of both businesses claims is that they should not have to follow the same health care laws that apply to all other businesses, and that employers should be able to limit their employees’ ability to obtain contraception because the employer objects to its use. But once Lee falls, it is not at all clear what rises in its place, or how easily courts are going to be able to draw a distinction between relatively narrow claims like Hobby Lobby’s and sweeping attempts to deny health care like Fremont Christian’s — not to mention the many grey areas in between.
By: Ian Millhiser, Think Progress, March 23, 2014
“Discriminator-In-Chief”: CPAC Presidential Straw Poll Picks Guy Who Thinks Whites-Only Lunch Counters Should Be Legal
With 31 percent of the vote, Sen. Rand Paul (R-KY) won the closely watched Conservative Political Action Conference presidential straw poll this weekend, dwarfing second place finisher Sen. Ted Cruz’s (R-TX) 11 percent of the vote.
The son of libertarian icon and former Congressman Ron Paul (R-TX), Rand Paul has emerged as the nation’s leading spokesperson for an anti-government philosophy that would undo nearly all the accomplishments of the New Deal and the Civil Rights Era. As a Senate candidate in 2010, Paul came out against the Civil Rights Act of 1964′s bans on private discrimination — including the bans on employment discrimination and whites-only lunch counters — claiming that the right of “private ownership” should trump African Americans’ and other minorities’ right to be free from invidious discrimination. Permitting private discrimination, according to Paul, is “the hard part about believing in freedom.”
Nor are Paul’s libertarian views limited to his skepticism towards civil rights protections. In 2013, Paul endorsed a long-ago overruled Supreme Court decision called Lochner v. New York. The Court’s Lochner opinion relied on a fabricated “right to contract” that it and subsequent cases used to strike down various laws protecting workers from exploitative employers — on the idea that if a worker signs a contract that forces them to work 16 hours a day for barely subsistence wages then it would somehow violate the worker’s rights to pay them more money for fewer hours work.
Lochner was overruled in 1937, after the Great Depression discredited the largely libertarian economic policy that had been imposed upon the country by the Supreme Court. And it was, until very recently, viewed as a disastrous opinion even among leading conservatives. Robert Bork, whose nomination to the Supreme Court was rejected by a Senate that deemed him too conservative, labeled Lochner as “the quintessence of judicial usurpation of power.”
Yet, if Rand Paul were elected president, he would have the power to nominate potential Supreme Court justices who would restore Lochner and who would potentially strike down the federal ban on whites-only lunch counters to boot. And this is the man that one of the nation’s top conservative gatherings selected as their first choice to be the next President of the United States.
By: Ian Millhiser, Think Progress, March 8, 2014
“Adegbile’s Denied Confirmation Is Affront To Our Principles”: A Handful Of Democrats Help Launch The Explosives
Last week, the floor of the U.S. Senate was the scene of a bipartisan travesty, an affront to the principles of the Constitution, an assault on the notion of American exceptionalism. With the help of several Democrats, Republicans refused to confirm Debo P. Adegbile, President Obama’s nominee to head the Civil Rights Division of the U.S. Justice Department.
The GOP’s resistance was expected since its senators oppose every nominee the president puts forward. But this time, Adegbile’s new job was torpedoed because a handful of Democrats stepped forward to help launch the explosives. They found objections in Adegbile’s résumé, despite his impeccable credentials, sterling reputation and years of advocacy in the causes associated with civil rights.
Indeed, it is precisely that advocacy that led to the assault on his qualifications. His alleged misstep? Adegbile, a lawyer, was tangentially involved in filing a court challenge on behalf of a former Black Panther named Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1981. Adegbile was litigation director for the NAACP Legal Defense Fund when it filed a brief contesting the jury-sentencing instructions, an argument which resulted in commutation of Abu-Jamal’s sentence from death to life in prison in 2012.
That process is embedded in decades of case law. Defense attorneys are supposed to vigorously represent accused criminals — no matter the crimes with which they have been charged, no matter their guilt or innocence, no matter how radical their demeanor or vile their behavior — especially in capital cases.
Among the people who ought to understand that is Pennsylvania’s senior Democratic senator, Bob Casey. If he had any decency, any gumption, any courage, Casey would have helped to smooth Adegbile’s path.
He would have noted that American justice rests on the idea that each person stands equally before the bar, a credo that cannot be upheld without defense attorneys for the accused. The senator might have pointed out that in the U.S. armed forces, even the most heinous criminals are represented by competent defense counsel. And he might have reminded Philadelphia’s Fraternal Order of Police that Adegbile did not spare Abu-Jamal’s life. A federal court did so because it agreed that instructions to the jury were unconstitutional.
Instead, Casey led the Democratic opposition. He explained his refusal to support the nominee with this statement:
“I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime. (But) it is important … citizens … have full confidence in their public representatives — both elected and appointed. The vicious murder of Officer Faulkner in the line of duty and the events that followed in the 30 years since his death have left open wounds for Maureen Faulkner and her family as well as the city of Philadelphia.”
That statement is confusing, contradictory and just plain dumb. Casey will ignore the system of law because of the awful grief borne by Maureen Faulkner? I cannot begin to imagine what her family has endured since her husband was gunned down shortly before his 26th birthday, but we don’t allow the anguish of families to dictate justice. If we did, they could serve as jurors, judges and executioners. But that wouldn’t be any different from a lynch mob, would it?
Similarly, Sen. Chris Coons (D-DE) explained his stick-in-the eye to Adegbile by speaking of the pain endured by the Faulkner family, even while acknowledging that “an attorney is not responsible for the actions of their client.” That wasn’t as outlandish as the rhetoric from Senate Minority Leader Mitch McConnell, who claimed that Adegbile was “seeking to glorify an unrepentant cop-killer,” but it was a non sequitur.
In this shameful episode, the person who best represented American values was Adegbile, the son of a Nigerian father and an Irish immigrant mother. He clearly puts more faith in the fundamental principles of his homeland than the 52 senators who voted against him.
By: Cynthia Tucker, The National Memo, March 8, 2014
“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