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.

No kidding


…I got nothing for you, in terms of like jokes and sounds, because of what happened in South Carolina…I honestly have nothing, other than just sadness, once again, that we have to peer into the abyss of the depraved violence that we do to each other in the nexus of a, just, gaping racial wound that will not heal, yet we pretend doesn’t exist.  And, I’m confident, though, that by acknowledging it, by staring into that and seeing it for what it is, we still won’t do jackshit.  Yeah; that’s us, and that’s the part that blows my mind.


The Confederate flag flies over South Carolina, and the roads are named for Confederate generals, and the white guy is the one who feels like his country is being taken away from him?  We’re bringing it on ourselves, and that’s the thing: Al Qaeda, all those guys, ISIS, they’re not shit compared to the damage that we can apparently do to ourselves on a regular basis.

Conductor’s call for boarding: next train to crazytown

The bad news is, more candidates are announcing for the 2016 presidential race in both major parties, which makes it harder and harder from day to day to ignore the pointless noise.  The good news is…OK, there isn’t any good news there.  But I did find a few reminders of the deplorable state of relations between our current president and the radical conservative opposition that we should keep in mind when we get serious about the next election…sometime next year, I hope.

Barack Obama is in the fourth quarter of his presidency but the tone of the attacks against him is as detached from reality as ever: remember, the conservative extremists proudly announced on inauguration day 2009 that their goal in life was to deny him any victories, just because he’s him.  Give them credit for perseverance, I suppose, even as we roll our eyes at their performance.

When the president announced an immigration plan late last year the conservative reaction that he was acting outside his authority thundered down as if an enormous dog whistle had ordered the uttering of talking points.  Never mind that the scripted response was, shall we say charitably, inaccurate; former solicitor general Walter Dellinger wrote in Slate:

Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it. The announced “deferred action” provides temporary administrative relief from deportation for aliens who are the parents of citizens, or the parents of lawful permanent residents. “Deferred action” is an exercise of discretion in which officials may temporarily defer the removal of an alien. The grant of deferred action in this case will remain in place for three years, is subject to renewal, and can be terminated at any time at the discretion of the Department of Homeland Security. As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do”—setting priorities for deportation enforcement.

That’s not even the most egregious example of the mindless opposition; how about, earlier this year, when Republicans in the Senate took it upon themselves to re-assure Iran—yes, Iran!—not to take the American president too seriously in nuclear arms negotiations.

Perhaps the most outrageous example of the attack on the president’s legitimacy was a letter signed by 47 Republican senators to the leadership of Iran saying Mr. Obama had no authority to conclude negotiations over Iran’s nuclear weapons program. Try to imagine the outrage from Republicans if a similar group of Democrats had written to the Kremlin in 1986 telling Mikhail Gorbachev that President Ronald Reagan did not have the authority to negotiate a nuclear arms deal at the Reykjavik summit meeting that winter.

There is no functional difference between that example and the Iran talks, except that the congressional Republican caucus does not like Mr. Obama and wants to deny him any policy victory.

It’d all be funny if it wasn’t so sad.  Wait, it is funny:


Thanks, Doonesbury and GoComics.com