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“Strange Justice”: A Victory For Right-Wing Ideology, But A Profound And Deep Loss For Racial Justice

Yesterday marked the twentieth anniversary of one of the great wrong turns in American civil-rights history, a grotesque decision that helped those who falsely and nonsensically believe that eliminating federal efforts to establish racial equality will somehow, in and of itself, establish racial equality. The horror of that day still reverberates, the pain of that moment still sears.

On June 12, 1995, the United States Supreme Court, in a ghastly 5-4 decision known as Adarand Constructors v. Pena, gutted the legal infrastructure upholding the country’s affirmative action programs:

In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ‘strict scrutiny,’ it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.

“Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constitution’s guarantee of equal protection of the laws protects “persons, not groups” of people.

“It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”

O’Connor and her conservative court colleagues effectively struck Rep. John Lewis in the head one more time with this disgusting and destructive ruling, which was, of course, seized upon by right-wing ideologues to block pathways to black progress. The Adarand decision represented the Supreme Court’s shout-out to those who believed that the federal government had done too much to combat past and present-day discrimination.

Perhaps the most repugnant aspect of this decision was the concurring opinion written by Justice Clarence Thomas–an opinion that rhetorically lynched his own black brothers and sisters. Then-TIME Magazine columnist Jack E. White was correct beyond refutation when he observed:

These days Washington seems to be filled with white men who make black people uneasy, like Newt [Gingrich] the slasher, Bill [Clinton] the waffler and Jesse the crank—Helms, that is, not Jackson. But the scariest of all the hobgoblins may well be a fellow African American, Supreme Court Justice Clarence Thomas. In the four years since George Bush chose him to fill the “black seat” vacated by Thurgood Marshall, Thomas has emerged as the high court’s most aggressive advocate of rolling back the gains Marshall fought so hard for. The maddening irony is that Thomas owes his seat to precisely the kind of racial preference he goes to such lengths to excoriate. And as long as he is on the court, no other black need apply: Thomas fills a quota of one.

The most disturbing thing about Thomas is not his conclusions, but his twisted reasoning and bilious rage. In his written opinions, he begins with premises that no self-respecting black would disagree with, then veers off into a neverland of color-blind philosophizing in which all race-based policies, from Jim Crow laws designed to oppress minorities to affirmative-action measures seeking to assist them, are conflated into one morally and legally pernicious whole. He delights in gratuitously tongue-lashing the majority of blacks who disagree with him on almost every civil rights issue. He heaps scorn on federal judges who have used the bench to enforce and expand civil rights, accusing them of a paternalistic belief in black inferiority…

[Thomas] does not hesitate to incorporate dubious theories into his opinions when they suit his purposes. In his brief concurring opinion in the court’s Adarand Constructors v. Pena, in which the court suggested that federal set-aside programs for minority contractors may be unconstitutional, Thomas wrote, “Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.” That claim reflects the wisdom of Gingrich country, where, as the House Speaker opined last week, most problems poor black people face are caused by their own “bad habits.”

What Thomas, O’Connor and their right-wing friends will never admit is that bigotry will always be with us; it is hard-wired into our very nature, and thus the federal government will always need to take measures to ensure that bigotry does not strangle the aspirations of Americans of color. To that end, there will never be a day that we can get rid of affirmative action. We will always need goals, timetables, set-asides, preferences and yes, even the dreaded quotas, as they are nothing more than tangible measures by which we seek to reduce racial inequality.

The Adarand decision did great violence to the dream of racial equality. It empowered aggrieved right-wing whites to attack affirmative action programs with vicious vehemence, and put white progressives on the defensive against dubious claims of so-called reverse discrimination. The case was a victory for right-wing ideology, but a profound and deep loss for racial justice.

 

By: D. R. Tucker, Political Animal Blog, The Washington Monthly, June 13, 2015

June 16, 2015 Posted by | Civil Rights, Racial Justice, SCOTUS | , , , , , , , | Leave a comment

“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.

 

By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“Emotional Distress And Mental Anguish”: Cleveland Cops Involved In 137-Shot Barrage Claim They’re Victims Of Discrimination

Nine of the 13 Cleveland police officers involved in a 137-shot barrage that left an unarmed black man and woman dead after a high-speed chase in 2012 filed a lawsuit last November claiming that they were treated too harshly and discriminated against by the police department in the aftermath of the shooting.

Michael Brelo, the white officer acquitted on Saturday of manslaughter charges for the shooting, isn’t involved in the lawsuit. The nine other officers, eight of whom are white and one of whom is Hispanic, claim the Cleveland Police Department treats non-black cops more harshly than African-American officers when they use force against black suspects, Cleveland.com’s Cory Shaffer reported.

“The City of Cleveland, through the other named defendants, and the other named defendants in their individual capacities, have a history of treating non-African American officers involved in the shootings of African Americans substantially harsher than African American officers,” the lawsuit states.

The lawsuit complains that the nine officers have been placed on restricted duty for far longer than the traditional 45 days following a police shooting, preventing them from earning overtime pay and forcing them to conduct “boring, menial tasks.” This, the lawsuit says, has impaired the officers’ pay and reputation and caused “emotional distress and mental anguish.”

The city denied all the allegations of discrimination in a response reported by the Cleveland Scene’s Doug Brown in January. There has been little movement in the case since then.

The lawsuit drew almost immediate criticism when it was filed in November because it felt so tone-deaf to critics of police in Cleveland and across the country.

“Yes, Cleveland police officers involved in killing two unarmed people are saying that extra long ‘gym duty’ because of their roles in a shooting incident resulted in ’emotional distress’ and ‘mental anguish,'” the Cleveland Scene’s Doug Brown wrote at the time. “Not that they killed people, but because of gym duty.”

Over the past year, the Black Lives Matter movement rose to national prominence as several police killings of black men and boys highlighted racial disparities in police use of force, including the deaths of 12-year-old Tamir Rice in Cleveland, Freddie Gray in Baltimore, and Michael Brown in Ferguson, Missouri.

But police officers, backed by their powerful unions, have by and large rejected this type of criticism. Not only do many cops and their supporters deny claims of discrimination, but they also worry that the increased scrutiny will make it more difficult to use force in scenarios that call for it, potentially putting officers and others in danger.

The disagreement has led some police officers to lash out. In New York City, after Mayor Bill de Blasio said he taught his biracial son to be careful around police, the city’s officers appeared to protest through weeks of a “work slowdown” in which they purposely reduced their activity and carried out fewer arrests.

The lawsuit from the nine Cleveland officers is another example of cops attempting to turn the criticisms around. Instead of acknowledging the disparities in the criminal justice system and the many contributing factors, these officers are saying that it’s actually they who are the victims of systemic discrimination.

 

By: German Lopez, Vox, May 24, 2015

May 25, 2015 Posted by | Cleveland Police Department, Police Brutality, Police Shootings | , , , , , , | 1 Comment

“Josh Duggar And The Purity Lie”: ‘Pure’ And ‘Godly’ Because They Police And Condemn Other People’s Sexual Lives

Josh Duggar, the oldest son of Jim Bob and Michelle Duggar, stars of “reality” TV and the real life conservative movement, has resigned his position as executive director of FRC Action, the political action arm of the Family Research Council, after In Touch magazine reported that he sexually abused young girls, including, apparently, his sisters, as a teenager.

In a statement to People magazine, Duggar, now 27, said:

Twelve years ago, as a young teenager, I acted inexcusably for which I am extremely sorry and deeply regret. I hurt others, including my family and close friends. . . . I confessed this to my parents who took several steps to help me address the situation. We spoke with the authorities where I confessed my wrongdoing, and my parents arranged for me and those affected by my actions to receive counseling. I understood that if I continued down this wrong road that I would end up ruining my life.

Ruining his life.

According to the police report, Jim Bob and Michelle, paragons of parenting, hid Josh’s crimes from the police and the public. In Touchreports, based on the police report it obtained via a Freedom of Information Act request, that:

Josh Duggar was investigated for multiple sex offenses — including forcible fondling — against five minors. Some of the alleged offenses investigated were felonies. Jim Bob and Michelle Duggar were interview [sic] by the Springdale Police department on Dec. 12, 2006. The report says that James told police he was alerted in March, 2002 by a female minor that Josh — who turned 14-years-old that month — had been touching her breasts and genitals while she slept. This allegedly happened on multiple occasions. In 2006, Jim Bob told police that in July, 2002 Josh admitted to fondling a minor’s breasts while she slept. “James said that they disciplined (redacted, Josh) after this incident.” The family did not alert authorities.

The police report reveals that Jim Bob Duggar “met with the elders of his church and told them what was going on” rather than contacting law enforcement. Josh was then sent to “Christian counseling” for three months, which, according to his mother’s admission, was not any sort of licensed counseling facility:

Asked about the training center that Jim Bob said Josh was sent to, Michelle told police, according to the report, “it was not really a training center. Det. [Darrell] Hignite asked if the guy [redacted, Josh] talked to was a certified counselor. She said no. She said it was a guy they know in Little Rock that is remodeling a building. Det. Hignite asked if the guy was more of a mentor. She said “kind of.”

In their own statement to People, Jim Bob and Michelle say that “when Josh was a young teenager, he made some very bad mistakes, and we were shocked. We had tried to teach him right from wrong,” that “each one of our family members drew closer to God,” and that they “pray that as people watch our lives they see that we are not a perfect family.”

But the Duggars and their supporters have very deliberately marketed them as a perfect family—or if not perfect, at least pure, and in particular, sexually pure.

The first episode of their “reality” television show aired in 2008, two years after the police interviewed family members about the sexual assaults that had taken place in 2002 and 2003; the statute of limitations had already run and the police could not pursue charges.

In 2010, the Family Research Council, Josh’s future employer, gave Jim Bob and Michelle the “Pro-Family Entertainment” award, describing the family as “outspoken ambassadors for Christian values in a secular world.”

On their television program in 2009, Josh Duggar was portrayed as devoting himself to a “courtship” with his future wife Anna, rather than dating, which was derided as part of the “divorce culture:”

Tonight, Anna described her husband to People as “someone who had gone down a wrong path and had humbled himself before God and those whom he had offended.”

This week, a recap of their television show on their blog discussed how Jim Bob and Michelle “encourage their kids to take a chaperone along on all their dates so they have someone to keep them accountable and ensure that they stick to their courtship standards.” In their family, they police sex outside of marriage. In politics they police sex between consenting adults, sex between people of the same sex; they are “pure” and “godly” because they police and condemn other people’s sexual lives. But now the public knows that this family which enforces “purity” has covered up the sexual predations—against children, even their own children— of their star son.

The Duggars haven’t shied away from “protecting” children in other contexts. As Right Wing Watch reports, last year Josh Duggar “led a successful campaign to defeat a LGBT nondiscrimination measure in Fayetteville, Arkansas, which he said jeopardized the safety of children,” and that his mother “also ran a robocall pushing for the repeal of the city’s nondiscrimination ordinance, which she warned would empower ‘child predators’ to threaten ‘the safety and innocence of a child.’”

The Duggars are no ordinary spokespeople for the religious right; they are super-spokespeople. For years, they have been held up as exemplars of biblical living, of devotion to Christ, and of, especially, homespun honest living and sexual purity. It’s long been obvious to many that this is a product of marketing and packaging, not reality. But now no one can pretend anymore.

 

By: Sarah Posner, Religion Dispatches, May 21, 2015

May 25, 2015 Posted by | Christian Conservatives, Sexual Asault, The Duggars | , , , , , , | Leave a comment

“An Immoral Worldview Common Among Republicans”: Police Violence Is Putting The Lie To The Tea Party Conservatism

As with so much else in modern America, the experience of Ferguson and Baltimore has turned police brutality into a partisan issue. With a few rare exceptions, Democrats and progressives tend to fall on the side of the victims of discriminatory and violent behavior by police, while conservatives tend to go to bat for the authorities.

The primary reason for this is racism: conservative whites tend to see urban minorities as either subhuman or guilty of cultural sins that are supposed to explain their endemic poverty. In that context, any police violence is excused as the necessary quelling by any means of an aggressively violent population unable to fit into civil society and unworthy of the civil rights afforded to non-minorities. It’s an immoral worldview, but extremely common among base Republicans.

The other reason is discrimination against the poor in general. Conservatives wrongly assume that the wealthy are society’s job creators, and the poor are simply moochers who eat off the generous fruits of the holders of capital. The military defends the righteous and free producers in America against the socialist and Communist freeloaders outside the U.S., while the police vigilantly defend property rights and social order against the ever-dangerous fifth column of parasites from within. That Objectivist viewpoint is just as factually wrong and immoral as the racist one, but it’s also far more acceptable within polite society largely because it’s so convenient to the wealthy elite and their enablers.

The problem, of course, is that these views run directly counter to supposed conservative stances on liberty and the 2nd Amendment. Republicans claim to be the defenders of freedom against big government tyranny. More disturbingly, they insist that deadly arsenals be permitted in every American home and even on the streets–primarily as a defense against the potential for infringement on civil rights by a totalitarian state.

But where we see the government most actively and destructively impinging on the rights of its citizens, not only are conservatives mostly silent on the abuses but they stridently stand on the side of the unaccountable state enforcers.

The reason is obvious, of course: the only government tyranny conservatives truly fear is one in which the poor–and particularly the non-white poor–have the ability to constrain their property rights. Cliven Bundy becomes a hero for threatening to shoot law enforcement that holds him accountable for stealing water and land, even as killer cops are lauded for killing unarmed black men for no legitimate reason. Welfare via taxation is seen as a greater evil than corporate malfeasance.

Conservatives can’t be upfront and honest about their immoral beliefs because only about 30% of the American population shares them, and it’s not OK to say most of these things in polite society. That’s why they’re so angry, why they feel oppressed, and why they “want their country back.”

But honesty here is necessary. We can’t move forward as a society without honest conversation, and if conservatives refuse to be openly honest about what they believe, it falls on us to provide that honesty for them.

But most of all, it’s time to stop pretending that Republicans care about liberty or government abuse of power. They really care about keeping poor people and minorities from having access to the same quality of life they purport to enjoy, and they’ll use every lever of tyranny to keep it way–whether through the ballot box or the ammo box.

 

By: David Atkins, Political Animal Blog, The Washington Monthly, May 2, 2015

May 3, 2015 Posted by | Baltimore, Partisan Politics, Racism | , , , , , , , | Leave a comment

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