Equal protection: it’s what we do here at the ol’ USA

The first time I wrote about gay marriage rights here was more than four and half years ago  (“Equal justice for all: the gay rights tide has turned,” Oct. 15, 2010) and the kernel of the argument was already formed:

We can proclaim not to understand why people are homosexual, or embrace a religious belief that homosexual activity is a sin, but none of that matters in a tolerant, secular, civil society.  The experts can’t say why a person is sexually attracted to one gender or the other.  And it violates the rights of due process and free speech guaranteed to each American in the Constitution to treat someone differently because of their sexual orientation just as it would to treat them differently because of their gender or their ancestry.


You don’t have to “understand” gay people any more than you have to “understand” people of a different race or a different religion.  You only have to understand that these people are Americans like you, who believe in American rights like you do, who want to enjoy American freedoms like you do…

This week, history: a 5-4 decision from the Supreme Court of the United States in Obergefell v Hopkins takes its place alongside the great civil rights and civil liberties decisions of American jurisprudence.  The U.S. Constitution guarantees the right of all Americans to civil marriage, and all its advantages and protections, be they heterosexual, homosexual, bisexual, or asexual.  As far as the civil law is concerned this isn’t about sex: it’s about equal treatment under the law.

Homosexual conduct is no longer a civil crime in this country, and thus is no reason to withhold the full rights and exercise of citizenship from homosexuals.  Homosexual conduct is objectionable within many organized religions, to be sure, and virtually all of the opposition to extending the right to marry to gays and lesbians has come on religious grounds.  For the most part I don’t question the sincerity of that religious belief (although it would be prudent to account for the cynical exploiters, primarily from the political realm).

But that’s beside the crucial point, which is that, in this country, civil law is not answerable to religious law.  The First Amendment guarantees that we each and all get the freedom to practice our religions, but also guarantees that none of those religions wields authority directly over civil society.  The Constitution protects us from any majority that would try to force one or another religious doctrine onto everyone—because the Constitution takes religious liberty for all just that seriously—and guarantees that all men and women deserve equal treatment under law.  Despite the nearly hysterical dissenting opinions of some of his colleagues, Justice Anthony Kennedy’s decision didn’t create a new right; it reminded us about a right that’s been there all along…and my friend Mr. Jefferson recognized the rationale by which Kennedy connected the dots (and Peter Foster of the Daily Telegraph reminded via the Twitterverse) long ago:

Obergefell does not mean that First Amendment protections of religious liberties are at risk, despite what you’ve heard.  Some of that reaction is well-intentioned misinformation; most is hot air from right-wing politicians and conservative religious extremists who need a boogieman to scare their supporters into donating money.  (I’m looking at you, Governor Abbott—thanks, Evan Smith for the Tweet-tip.)  In either case, they are wrong.  Religious organizations are exempt from this ruling, as they are exempt from many other laws, like, say, tax laws.  As Lisa Falkenberg put it in this morning’s Houston Chronicle, this ruling has no applicability to individuals in their private lives or to private religious institutions: “It does not keep anyone from judging, or hating, or even just politely refusing to acknowledge gay people.  No court ruling has ever told a pastor whose wedding he or she can bless.  That hasn’t changed.”

It is possible to believe in the religious sacrament of marriage and still accept this court’s decision on civil marriage rights for homosexuals.  Michigan Representative Justin Amash, a Tea Party/Libertarian/Republican, made the point quite nicely this week on Facebook:

Throughout history, different cultures have defined marriage according to their own customs and practices. Christians, Jews, Muslims, Buddhists, Hindus, agnostics, and atheists do not share identical views on marriage. In fact, significant differences regarding marriage exist even within Christianity.

What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.

Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.

To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority. (emphasis added)

The civil right of marriage is open to all Americans.  We must be diligent about making sure that the implementation of this decision protects the First Amendment rights of those with a religious objection to same-sex marriage, keeping in mind that it doesn’t give them the right to ignore the law.  And while we’re at it we should work on getting rid of the laws which still permit discrimination against gay Americans in the areas of housing and hiring and other aspects of day to day life, and any other laws that violate anyone’s right to equal treatment.  Because we’re Americans, and that’s what we do.

Take no pride in the stars and bars

This should be an easy call for everyone: the battle flag of the Confederate States of America is a symbol of traitors who went to war against their own country with the primary goal of preserving their ability to buy and sell human beings as property.  I don’t understand why that flag has been treated with respect anywhere since the day Lee surrendered to Grant.

This was never an issue for me as a kid: either we lived in New York, Ohio or Minnesota where I don’t remember ever seeing the Stars and Bars displayed, or we lived in Alabama and Texas but I was too young to understand what the flag symbolized, or how often one would see it flying.  I admit, ashamedly, that once I was old enough to understand, I didn’t think much of it: so what if a neighboring high school was named after Robert E. Lee, and their mascot was the Rebels, and the Confederate battle flag was their flag.  It didn’t register for me, meant nothing.

The first time I experienced cognitive dissonance over the display of Confederate symbols was when I arrived at college, at The University of Texas at Austin, in the fall of 1975.  Suddenly there were a lot of places where people were very seriously, and very publicly, paying homage to the men who provoked a war with America over the issue of slavery.

Mostly for me, it was the statues. The South Mall, just beyond the plaza in front of the Main Building—the Texas Tower—features heroic statues of three icons of the Confederacy: CSA president Jefferson Davis, and army generals Robert E. Lee and Albert S. Johnston (plus CSA postmaster general John Reagan).  They were put 3371952120_246b01a6ed_zthere in the early 20th century, along with a statue of President Woodrow Wilson and one of former Texas Governor James Hogg, in conjunction with the Littlefield Fountain, all envisioned as a grand entry to the university and a memorial for the university students who died in World War I, which in the sculptor’s view was the beginning of real healing after the Civil War since it was the first time Americans from all across the country started to act as citizens of the same country again.  There was also supposed to be a statue of George Washington that didn’t get finished in time due to finances, and it was later placed nearby.  (A good short history of the UT statues is here, in a recent article in the Austin Chronicle.)

You put up a statue of someone, you’re honoring them and what they did and stood for in their lives.  For me, one day on the South Mall, I finally thought, why the hell is my university honoring traitors?  Racist traitors?  Why do we in Texas name streets and schools and public buildings after these people?  The fountain nearby (pictured) has an inscription memorializing those who died in WWI, and a second inscription recognizing another conflict:

To the men and women of the Confederacy, who fought with valor and suffered with fortitude that states’ rights be maintained and who, not dismayed by defeat nor discouraged by misrule, builded from the ruins of a devastating war a greater South and to the men and women of the nation who gave of their possessions and of their lives [so] that free government be made secure to the peoples of the earth this memorial is dedicated.

Just a few more blocks to the south, on the grounds of the state capital, there’s a Confederate Soldiers Monument, and another to the 8th Texas Cavalry known as Terry’s Texas Rangers.  What the f***?

The shooting deaths of nine people in a Charleston church last week, by a young man who used the Confederate battle flag as part of his symbology of white supremacy, has sparked (seemingly from out of nowhere) a lot of discussion about the propriety of governmental display of these symbols of racism , and caused me to consider the issue.  Let me be clear about my position.

I’m not saying that all the Confederate flags and all the statues of all the Confederate “statesmen” and generals, and all the memorials to the Confederate soldiers, should be banned or removed or destroyed.  I’m not suggesting we pretend that the Civil War didn’t happen; we need museums and displays that can tell the story in context.

I am saying, those people were wrong to enslave their fellow men and women and children, and they were wrong to try to secede from the United States so they could continue to do so; they lost the war they started, which cost their part of the country most dearly in lives and treasure.  And we as a people, as a nation, as state institutions, should not be seeming to honor them and their actions by displaying their flag.  As individuals, you or I can fly any flag we choose, for whatever reason; but there is no reason I can think of that any government entity in the United States should make any prideful display of the symbols of a failed racist rebellion.

And let’s be clear about the motives: the states of the Confederacy fought that war to protect their ability to engage in human slavery. Ta-Nahesi Coates has the goods in a recent article in The Atlantic.

The Confederate flag is directly tied to the Confederate cause, and the Confederate cause was white supremacy. This claim is not the result of revisionism. It does not require reading between the lines. It is the plain meaning of the words of those who bore the Confederate flag across history. These words must never be forgotten. Over the next few months the word “heritage” will be repeatedly invoked. It would be derelict to not examine the exact contents of that heritage.

And examine it he does, using the words of the secessionists to deny any modern-day claim that the Confederacy was not about preserving slavery. 

  • South Carolina: “…A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction. This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.”
  • Mississippi: “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin…”
  • Louisiana: “As a separate republic, Louisiana remembers too well the whisperings of European diplomacy for the abolition of slavery in the times of an­nexation not to be apprehensive of bolder demonstrations from the same quarter and the North in this country. The people of the slave holding States are bound together by the same necessity and determination to preserve African slavery.”
  • Texas: “…in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding states….”

You get the idea.  Civil War documentarian Ken Burns backs up the argument; South Carolina state senator Paul Thurmond, son of famous racist and Dixiecrat presidential candidate Strom Thurmond, says the “heritage” some claim to be glorifying is nothing to be proud of.

All the talk of “state’s rights” is just polish on the pig: the right that the Confederate States of America was trying to protect was the right to own other human beings.  Their agricultural economy depended on free labor in the fields and in the master’s house.  Those people fought a war to maintain slavery in this country; that’s not worthy of our respect, and neither is their flag.

Get yer red-hot SCOTUS arguments, right here!

The briefs and the arguments for today’s Supreme Court of the United States hearing on the same-sex marriage case are available…go have a read and a listen, and we can all join the High Nine in deciding the case!

This is the stuff of history, kids…don’t miss it.

It’s a good news/bad news Friday

The good news comes from the Supreme Court of the United States, which has decided that it will hear arguments on whether or not same-sex couples have a right to marry. This New York Times story summarizes the cases from Ohio, Tennessee, Michigan and Kentucky that are at the heart of an appeal of a decision from the United States Court of Appeals for the Sixth Circuit which the High Nine have now agreed to consider.

The court said it will hear two and a half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.”

The last hour will concern a question that will be moot if the answer to the The first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”

This is very exciting: within just a few months we’ll have a ruling from the country’s highest court on whether same-sex marriage is to be permitted in all 50 states, not just the 36 states and the District of Columbia where it is legal now.

Now, the bad news: the Southern Education Foundation believes that “For the first time in at least 50 years, a majority of U.S. public school students come from low-income families.”  The Washington Post has a good summary of the report.

Half of all public school students in America are poor?  Half?!  (More than half in 21 states; Mississippi at 71% has the highest percentage.)  I find myself surprised by this confirmation of how far the abandonment of our public schools has gone by those who can afford other options.  (Full disclosure: although most of my education was in public schools, I attended and graduated from a private high school.)  A free public education for all was a great example of America’s commitment to a society where everyone has an opportunity to succeed.  We all paid our share for public schools, even those who sent their kids to private school or whose kids had finished school or who never had any kids at all, because it meant a better-educated society and that was a benefit for all of us.

But more and more, people became unhappy with their public school systems.  When the quality of the education declined people got upset that their kids were being cheated out of their futures; in some cases it was court-ordered desegregation that made people unhappy with their public schools.  Many of those who could afford to moved to suburban school districts and took their tax money with them, leaving the city schools with less and less money to spend on teachers and books and buildings.  Which meant even poorer quality education, which prompted more parents to flee, and the cycle continued.

Today people are trying to get voucher laws passed that will in effect allow their school tax money to pay for their kid’s education in private schools, taking even more money out of the system that is the only resort for the poor, the students whose families can’t afford private schools or charter schools or anything other than the old school down the street.

I understand that parents want the best for their children; I get it that despite recent improvements our economy isn’t as strong as it once was and a lot of people don’t have the jobs and income they want and deserve.  Still, I’m saddened at how many people seem to feel that abandoning the greater good for American society—the education of everyone else’s children—is the best way for them to take care of their own.

No news is actually excellent news

It’s not that nothing happened…but today, when the justices of the Supreme Court of the United States decided not to take up any of the pending cases on same-sex marriage, as they were expected to, the decision not to decide—at least not yet—was another sign that homosexual Americans can look forward an end to legalized discrimination sooner rather than later.  Some of them saw no reason to wait—same-sex marriages started in Virginia within hours of the news this morning.

The decision not to hear arguments in any of the cases where federal appeals courts had in essence ruled in favor of same-sex marriage means that those rulings stand, clearing the way for legal same-sex marriages in as many as 11 more states, bringing the number of states on the right side of history to 30 so far (and don’t forget the District of Columbia!).  Vox.com has a good explainer here of what today’s actions mean, with links to an update on where each state’s court case stands and graphics showing how gay marriage is being recognized in law as the right thing to do even in places where many citizens disagree.  But that’s what courts are for, to enforce law and equity in the face of majority ignorance.

Why did the justices decide as they did?  I don’t know, and the justices are not compelled to explain.  But it means that, for whatever reason or reasons, there weren’t at least four justices who were willing to take one or more of these cases right now.  I’ve read some theories that the court decided not to hear any cases because there was no disagreement: all the pending court cases were in favor of allowing same-sex marriage, so they felt there was no conflict that required their special wisdom to resolve.  The argument goes that once there are one or more cases with the opposite finding, the nation’s highest court will step in; I guess we’ll see if that’s so, but this court’s ruling in Windsor v. United States overturning the Defense of Marriage Act as a deprivation of equal protection under the law should give a good hint what they might say.

I’ve said it before (“SCOTUS dumps DOMA: fair, simple, American”), and I’d like to say it again:

This is not about what one religion or another teaches about homosexuality; this is about how the civil law treats American citizens regardless of their religious belief, or their gender or their race or national origin.  A religion is free to believe and teach what it wants about the morality of homosexual behavior or same-sex marriage, and its teachings and laws are important to the members in good standing of that particular faith.  But those teachings are not binding on Americans who are not members of that denomination.  The civil law, which orders how we all deal with one another in the secular society outside the confines of our many private clubs, is blind to such moral questions.  States have the right to decide who can “marry” and who can’t, and the federal government has to treat all “married” couples in the same way, regardless of the gender of the spouses.  Simple, really.  Fair.  American.  Congratulations, U.S.A., on another successful day at the office.