“Constitutional Protections Cannot Be Undone By Popular Vote”: Why The Constitution Trumps Any State’s Ban On Same-Sex Marriage
With the Supreme Court scheduled to hear oral argument next week in marriage equality cases, everyone is looking to the marriage cases the Court decided in 2013 in an attempt to predict what it’s likely to do this time around. But another recent case on a very different topic may actually have much more to say about marriage equality than one would think: last year’s case about warrantless searches of an arrestee’s cell phone. In that case, the Court held such searches unconstitutional and underscored a principle that bears on the marriage discussion—namely, that constitutional protections cannot be undone by popular vote.
The basic question in the marriage equality cases is simple. Does the Fourteenth Amendment—which prohibits states from denying any person “liberty… without due process of law” and “the equal protection of the laws”—bar state bans on same-sex marriage? The text and history of the U.S. Constitution, not to mention the Court’s own precedents, make clear that it does. Opponents of marriage equality thus are resorting to what is becoming a familiar argument, saying marriage equality should be decided not by the courts, but by the people. By that logic, citizens of individual states can trump the Constitution’s broad equality guarantee if they vote to do so.
One of the most significant statements of this view can be found in the lower court opinion the Court is reviewing. Last year, federal appeals court judge Jeffrey Sutton described the question in the marriage equality cases as a “debate about whether to allow the democratic processes begun in the States to continue… or to end them now by requiring all states in the Circuit to extend the definition of marriage to encompass gay couples.” He noted that “[i]n just eleven years, 19 states and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” He described that “timeline” as “difficult… to criticize as unworthy of further debate and voting.” Unsurprisingly, defenders of that opinion have continued this line of argument in the Supreme Court. One of the parties’ briefs argues that the Court should adopt a deferential standard in reviewing state marriage bans because that standard “defers to voters in order to protect the democratic process.” Another asserts that “[t]he Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates.”
These arguments about “democratic process” may seem more attractive than some of the other arguments made by opponents of marriage equality. For instance, leaders of the 2012 Republican National Convention Committee on the Platform filed a brief arguing that marriage bans are constitutional because, in part, men need “traditional marriage” so women can “‘transform [their] male lust into love.’”
But there’s a basic flaw in the “democratic process” arguments, as last year’s cell phone search decision confirms. They get the Constitution exactly backwards.
In Riley v. California, the Court considered whether the police may without a warrant search someone’s cell phone following an arrest. The Court held, in a unanimous opinion, that the answer is no; such searches are generally prohibited by the Fourth Amendment’s requirement that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… not be violated.” Recognizing that “unrestrained search[es] for evidence of criminal activity” was “one of the driving forces behind the [American] Revolution,” the Court concluded that warrantless cell phone searches permitted too great an intrusion on privacy and thus should not be allowed, absent exigent circumstances preventing the police from obtaining a warrant. As Chief Justice Roberts explained in the Court’s opinion, modern cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and they can contain a vast amount of “sensitive personal information.”
Justice Alito agreed with the rest of the Court that such searches were unconstitutional, but he wrote separately to make two points, one of which has bearing on the marriage equality cases. Alito wrote that he “would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.” Put differently, Alito would allow Congress and state legislatures to change the Court’s answer in Riley. Even though the Court had concluded that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” generally prevents the police from engaging in such searches, Alito would allow Congress and state legislatures to decide that “the legitimate needs of law enforcement” outweigh the “privacy interests of cell phone owners.”
Tellingly, no other Justice joined Alito’s opinion. Not one. And that tells us a great deal about the “democratic processes” position adopted by Judge Sutton and advanced by opponents of marriage equality. What the rest of the Court implicitly recognized in Riley was that Alito’s approach is fundamentally wrong. Congress and state legislatures may be able to supplement the Constitution’s protections—indeed, they may sometimes be well-suited to doing so, as Alito noted in a different Fourth Amendment case about GPS monitoring—but they cannot scrap them.
Indeed, that is a point so fundamental to our constitutional order that the Supreme Court has made it repeatedly in various contexts, noting that fundamental constitutional protections “depend on the outcome of no elections,” and “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” As recently as 2011, in a campaign finance case, Roberts explained that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” The Constitution, not voters, has the ultimate legal authority. In the past, the Court hasn’t treated the Fourteenth Amendment any differently than the First and the Fourth. In 1996, for example, it struck down a state constitutional amendment adopted by state voters because it violated the Fourteenth Amendment.
When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases. If it does, there’s no question what the result should be: a resounding victory for marriage equality.
By: Brianne J. Gorod, Appellate Counsel at The Constitutional Accountability Center; The New Republic, April 23, 2015
“The Bane Of Political Life In America”: For Conservatives, Government Coercion Is Bad — Except When It’s Not
For conservatives, government coercion is the bane of political life in America. As members of the self-styled anti-government party, they very much are interested in making the case that coercion is inherently illegitimate, whether it is a law requiring you to purchase health care or a law requiring businesses to serve LGBT customers. The problem with this logic is that all laws are coercive — even the ones conservatives like.
Last week, I wrote about the intrinsic coerciveness of all laws in the context of protecting LGBT people from discrimination, which prompted a hilarious yet telling reaction from Sean Davis at The Federalist.
Davis, possibly because he quite obviously did not even read past the first couple paragraphs of my post, is not just wrong, but has missed the entire axis of debate. However, he does inadvertently provide a great example of just why conservatives are ill-advised to admit that all laws are coercive. Because if this is true, then conservatives will have to give up one of their favorite rhetorical tropes — being against coercion in the name of individual liberty — or resort to outright hypocrisy.
The argument was not about LGBT laws in themselves, something Davis failed to grasp. Instead it was about the justification of such laws. My position is that being against government coercion is not legitimate grounds on which to oppose any policy. This applies to liberals, too, though as members of the pro-government faction they generally don’t worry about it much.
But conservatives do. Most of what is referred to as “government” in popular media is liberal stuff like Social Security, Medicare, or food stamps. Labeling those programs as coercion gives conservatives a convenient pro-liberty sheen when they’re talking about slashing poor people’s incomes.
That changes when you bring up things like property. Though ordinary people rarely talk about it in this way, property is underpinned by exactly the same kind of coercion that bolsters civil rights or tax laws, as is the entire superstructure of what we refer to as the free market system — that is, by government coercion.
Therefore, conservatives can’t be principled anti-coercion advocates unless they are willing to throw out private property, which they obviously aren’t. Coercion can’t be bad when it supports things you don’t like and good when it supports things you do — no matter what some conservatives maintain.
Let me emphasize that this line of reasoning doesn’t mean you can’t oppose some civil rights law, just that you can’t oppose it on the grounds of being against coercion in general.
Of course, framing the discussion in this way powerfully strengthens left-wing arguments. If being anti-coercion is utter nonsense, then the debate moves to which kinds of coercion are best as judged by some other moral framework. Whether that’s utilitarianism, contract theory, or Christian ethics, under such conditions it’s a lot harder to oppose transferring income from rich to poor or social insurance programs.
Thus, when presented with left-wing slogans like “property is violence,” your average conservative, perceiving a trap, will resist. In reality there is no escape.
But what makes Davis such a great example is he genuinely doesn’t seem to understand what the problem is here. He argues in one breath that, duh, of course all laws protecting property depend on coercive violence. Then in the very next paragraph, he writes this:
At their core, however, Kohn and Cooper appear to desperately want to avoid the real question at the heart of the religious freedom debate: should the government force individuals to participate in religious ceremonies against their will? [The Federalist]
Government coercion is good, except when it’s not. That’s the kind of stark hypocrisy conservatives would do well to disguise better.
By: Ryan Cooper, The Week, April 14, 2015
Governor Mike Pence promised Tuesday to “fix” a controversial law with anti-gay undertones in an attempt to stop the constant hammering the state has received since he signed the Religious Freedom Restoration Act into law last week.
“I don’t believe for a minute that it was the intention of the general assembly to create a license to discriminate or right to deny services to gays, lesbians or anyone else in the state, and it certainly wasn’t my intent, but I can appreciate that has become the perception,” Pence said.
But advocates for changes to the law said if Pence didn’t know this would turn into a public-relations dumpster fire, he was either willfully ignorant or simply didn’t care.
Gay-rights advocates said they flagged the problem with the lack of protective language early in the process and pushed minor amendments to the bill, they say, would have largely resolved the issue.
It is unclear whether Pence himself knew about the amendments, but two people familiar with the lobbying effort behind the pro-LGBT measures said it was clear very early in the process that the governor did not want any changes to the bill.
“Pence and his party insisted that the bill not be balanced,” said Indiana Representative Ed Delaney, a Democrat and the author of an amendment that would have added the sentence “the protection of civil rights; or the prevention of discrimination; is a compelling government interest” to the bill.
Delaney said Pence’s office either didn’t know or didn’t care about the amendments.
“He’s created this problem,” Delaney said.
Another amendment would have exempted civil rights laws from RFRA—a change modeled after similar laws in Missouri and Texas. (Indiana’s civil rights laws do not protect LGBT individuals—but several local municipalities, like Indianapolis, have laws on the books that extend civil rights protections to the LGBT community).
Both amendments were rejected by the Republican-led Indiana legislature.
Pence’s retreat—just Sunday he said the law would not be changed—signified that Indiana’s culture warrior had, once again, bit off more than he could chew.
As the uproar started, Pence staff thought the issue would fade, according to a source last week familiar with a conversation between Pence and his aides. So while Pence expressed surprise at the vitriol created by the law, LGBT advocates said he should have seen it coming.
“There is no surprise in this,” Dale Carpenter, a constitutional and civil liberties law professor at the University of Minnesota Law School.
“They chose to reject those changes in the committee and again on the House floor that suggests to be the legislative intent here is to allow religious freedom to impact anti-discrimination laws,” said Tyler Deaton, senior advisor at American Unity Fund, a pro-gay conservative group.
Pence insisted in an uncharacteristically defensive interview on This Week last Sunday the bill was about religious liberty, not discrimination.
“There’s been shameless rhetoric about my state and about this law and about its intention all over the Internet,” he said. “People are trying to make it about one particular issue.”
“Shameless rhetoric” aside, there are plenty of reasons to be skeptical of Pence’s explanation, starting with the actual signing of the bill.
And it had everything to do with the “particular issue.”
In a photo of the private signing ceremony, Pence is surrounded by a small group of people—including the three wise men of the anti-gay marriage movement of Indiana: Micah Clark, executive director of the American Family Association of Indiana; Curt Smith, president of the Indiana Family Institute; and Eric Miller, executive director of Advance America.
Delaney said the presence of those individuals at the signing ceremony spoke volumes about the intent of the law.
“Is Mike Pence the only person who hasn’t read their press releases?” Delaney asked. “He knows what they wanted to do.”
Pence, himself, has a long, proud record of opposing gay rights during his tenure in Congress.
It also isn’t the first time he carried it into the governor’s mansion, where it has had some pretty embarrassing results.
A push for a constitutional ban on gay marriage in Indiana ended in failure but only after the Pence team tried to censor the opposition.
When gay-marriage proponents posted their displeasure with the measure on Facebook, Pence’s staff simply deleted the messages.
Initially, Pence and his staff said they just deleted comments that were obscene— but later fessed up to removing only the comments that disagreed with the governor’s position.
“On careful review, it appears that this was not always the case and some comments were being deleted simply because they expressed disagreement with my position. I regret that this occurred and sincerely apologize to all those who were affected,” Pence wrote in a Facebook post at the time.
Adding insult to injury the measure failed, giving Pence a black eye just a year into his governorship.
This is a slightly different response than Pence was used to during his time in Washington.
As a member of Congress he had no problem opposing rights for the LGBT community.
He voted for a constitutional amendment to ban gay marriage and against the Employment Non-Discrimination Act, which would have added LGBT as a protected group on the federal level from discrimination in the workplace.
When the federal amendment to ban gay marriage failed to pass the House in 2006, Pence proclaimed it a “successful failure.”
“We poured a little more concrete in the footings of a building that will be built,” Pence said at the time, according to the Associated Press.
He was lauded as a hero by the right for his positions on social issues—receiving multiple “True Blue” awards from the Family Research Council for “his commitment to the family and sanctity of human life.”
The Indiana Family Institute, which was instrumental in crafting the RFRA bill, has likewise awarded him the “Friend of the Family Award.”
But being a culture warrior as governor, as he has found out, has higher stakes.
“He could afford to be a culture warrior because it wasn’t impacting an entire state’s economy,” Deaton said, referring to the burgeoning “boycott Indiana” campaign. “And now he has a different burden on his shoulders and this is turning out to cost the state tens of millions of dollars on the bottom line, thousands of jobs. This is really problematic for a governor.”
By: Jackie Kucinich, The Daily Beast, March 31, 2015
“The Ballad Of Lester Maddox”: Supporters Of Discrimination Have Always Cloaked Their Views In Appeals To Personal Liberty
Once upon a time, a restaurant owner refused to serve people who were different. He said he did so in the name of freedom, not discrimination.
The time was 1964, the place was Georgia, and the man was Lester Maddox. He was the owner of The Pickrick restaurant and one July day he chased out three black patrons, waving a pistol. This made him something of a local celebrity and a national symbol of resistance to the big government imposition of civil rights. But he always insisted that he was not motivated by racism but simply defending the rights of private property and his personal beliefs.
“This property belongs to me—and I’ll throw out a white one, a black one, a red-headed one or a bald headed one. It doesn’t make any difference to me.”
Maddox became a hero to conservative populists—most of whom were Democrats at that time in the South, because of a hangover from the Civil War a century before—and he rode the wave of resistance to desegregation all the way to the Governor’s mansion two years later.
“History doesn’t repeat, but sometimes it rhymes,” Mark Twain allegedly said. And there are no perfect parallels between Lester Maddox and the florists, bakers and other small business owners who have been invoked as a reason to protect the religious liberties of those who could legally refuse to serve gay and lesbian weddings. But amid a national debate about gay civil rights a half-century later, as we fitfully evolve toward the promise of a more perfect union, it is useful to listen for echoes of old arguments because they can clarify our current conversations.
We’ve had an age-old argument in our nation between the powers of the federal government and states’ rights. It goes back to the ratification of the Constitution (ironic, because many of the states’ rights advocates since have presented themselves as the purest defenders of the constitution) and found expression in the heated debates between John C. Calhoun and Daniel Webster, and Jefferson Davis and Abraham Lincoln that ultimately exploded into civil war. The arguments resurfaced again in the 1960s over civil rights and desegregation. And so it goes.
But the de facto defenders of slavery and segregation rarely framed their arguments as endorsements of inequality. Instead, their argument was often uplifted, framed as a defense of lofty ideals. Sometimes these were rooted in theological objections—defense of slavery and defense of segregation was at one point imbued with the hue of religious belief. But more often it was framed as a fight between individual liberty and government tyranny, with no irony intended.
George Wallace, the conservative populist Democratic Governor of Alabama who heatedly defended segregation was a case in point. He famously thundered in his inaugural address that “It is very appropriate that from this cradle of the Confederacy, this very heart of the great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us time and again down through history… In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever.”
But he also made more subtle arguments against civil rights, rooted in private property: “This civil rights bill will wind up putting a homeowner in jail because he doesn’t sell his home to someone that some bureaucrat thinks he ought to sell it to.”
And yet he insisted, “I never made a statement in my political life that reflects on a man’s race… my only interest is in the restoration of local government.”
Apple CEO Tim Cook grew up in George Wallace’s Alabama and as he wrote this week in The Washington Post, “I remember what it was like to grow up in the South in the 1960s and 1970s. Discrimination isn’t something that’s easy to oppose. It doesn’t always stare you in the face. It moves in the shadows. And sometimes it shrouds itself within the very laws meant to protect us.”
It’s this “shroud” line that’s most relevant here. Even old Lester Maddox, looking back on his life in a 1975 memoir, reflected that “I knew then, as I know now, that I was trying to protect not only the rights of Lester Maddox, but every citizen, including the three men I chased off the property.”
This seductive self-justification doubles as self-deception. It’s a trope that tied libertarians up in knots for decades, trying to mediate their own twin imperatives of property rights and individual liberty. But time has made those choices clearer, as conservatives celebrate the now self-evident moral clarity of Martin Luther King, who declared that he was “embarrassed” when Maddox was elected Governor. This was understandable, given that Maddox called desegregation “ungodly, un-Christian and un-American.”
Maddox, if he is remembered today, is perhaps best known as a refrain in the ‘70s-era satirical Randy Newman song “Rednecks,” which proclaims, “well, he may be a fool, but he’s our fool, and if you think that you’re better than him you’re wrong.” The song goes on to jab at the hypocrisy of self-righteous northern critics who denounce the South while ignoring the segregation that hides under their own noses in cities like New York, Chicago and Boston. But as with all satire, the song contains a serious point that echoes on today: when conservative populism rears its head, liberals often make divisions worse by denying the respective humanity and individuality of the people with whom they disagree, compounding resentments that can turn into political backlash that endures for decades.
What’s sinister is the Orwellian mislabeling of the impulses behind resistance to civil rights progress that aims to ensure equal protection as a defense of liberty. And while it’s become fashionable for conservatives to honor Martin Luther King and venerate past civil rights fights, it’s nothing more than an attempt to benefit from historical amnesia unless they are willing to apply those lessons to present day debates. That means respecting the core conservative value of individual freedom in reality rather than just rhetoric.
In the Ballad of Lester Maddox, the lyrics change but the melody remains the same. It echoes across the decades, age-old arguments where freedom to discriminate becomes the emotional litmus-test of liberty. Direct parallels may miss the point, but ignoring these echoes blinds us from the ability to see current events in light of history and to anticipate what arguments will look like generations from now.
By: John Avlon, The Daily Beast, March 31, 2015
“It’s Time For A Collective And Unbridled Demand For Justice”: Following MLK’s Example Means Ending Our ‘Whatever’ Mindset
I am often deeply disturbed by our remorseless witness. We are all implicated; we share responsibility for our witness of well-defined evil.
We don’t protect our most vulnerable children; we value people according to arbitrary standards blind to the image of God on every face; we are too quick to kill and to slow to forgive; we tolerate the desecration of the only earth we will ever know. We give a platform to political leaders who want to “take back our country” — by setting policies that favor the wealthiest over everyone else, selling public schools to the highest bidder, and tearing apart the safety net that sustains the elderly and assists our most vulnerable — as if their words and ideas are worth listening to, or are grounded in principles worthy of our attention or even support.
Our response? Too often it is tantamount to this: “Whatever.”
We allow injustices to persist as if solutions are someone else’s responsibility. We watched our Congress over the last six years — as we slid deeper into recession, as our immigration crisis worsened, as tragic deaths from gun violence killed children school by school, people in movie theaters, women and children in the sanctity of their homes — do less and less, making history for inactivity. Even now, behind all of the soaring rhetoric is a shocking lack of action. It’s almost as if Congress said, whatever. How will we respond?
February is African-American History Month, so rest assured there will be plenty of posturing by our elected leaders. I hope we will revisit a figure often celebrated at this time of year — but I hope we will have a new appreciation of his example, and what his example should mean in our daily lives.
Martin Luther King, Jr. was a young man, going about his daily business, following his predictable path when God called. He was a preacher’s kid from a solid middle class upbringing, attending Morehouse College in Atlanta, Boston University School of Theology, earning a Master of Divinity and a Ph.D. He was on a Yellow Brick Road headed for Oz. But God had need of him and he joined the ranks of prophets like Samuel, Amos and Jeremiah; like Martin Luther, and Dietrich Bonheoffer; like Gandhi, Ella Baker, Sojourner Truth, Fannie Lou Hamer and so many others that could be named.
In part, what distinguishes King and these moral giants is the fullness with which they heard the cry of injustice and responded. And we can all hear it if we listen, and we can all respond. As Callie Plunket-Brewton remarked, “The overwhelming witness of the prophets is that God has no tolerance for those who prey on the weak, who abuse their power, or who eat their fill while others are hungry.”
God has no tolerance for whatever.
And King had no tolerance for it either. In 1959 he said, “Make a career of humanity. Commit yourself to the noble struggle for equal rights. You will make a greater person of yourself, a greater nation of your country, and a finer world to live in.” Six years later, in 1965, he described his vision for where that career in humanity should lead us: “We must come to see that the end we seek is a society at peace with itself, a society that can live with its conscience.”
Today, are we not a society that has lost its conscience? One only has to listen to the foolishness that passes for debate in any political season — and there is one on the horizon — or to the witless chatter on our televisions to feel the weight of Whatever pulling us down into the gravity of our condition.
But I have hope. I have hope that people of faith in every tradition will heed the words and examples of King and other prophets, and will wake up and rise up, will speak up and stand up; will turn for a moment from entertaining ourselves, buying things, cheering sports teams and entertainers, and insist on a world where children have clean water to drink and safe places to sleep; where the elderly can rest secure, the fruit of their labor beyond the reach of politicians; where a good public education awaits every eager child and a job with a living wage is there for every adult willing and able to work; where health care is a right, not a privilege, and humanity has matured beyond the illusion that our security is gained by weapons and wars.
This month we will celebrate many great African-Americans whose contributions to better our nation and world seem incalculable. But rather than set them apart, let us learn from their example and respond as they would have responded. I long for the day when people of all faith traditions call upon those who exercise power in our nation with words lifted from the heart of our faith — so that our living may be transformed. The time for whatever has long since passed — it’s time for a collective and unbridled demand for justice.
By: Rev. Michael Livingston, Bill Moyers Blog, Moyers and Company, February 15, 2015; This post first appeared at TalkPoverty.