Supreme Court

Supreme Court and Same-Sex Marriage

This past Wednesday, The Supreme Court of the United States weighed in on same sex marriage issuing two decisions, one dealing with a portion of the Defense of Marriage Act (DOMA), the other with California’s Proposition 8. As is frequently the case, especially given the divisions within the Court, advocates on both sides of the debate are expressing some disappointment.

In the case of DOMA, the Court decided that the federal government must grant to married homosexual couples the same benefits its accords to married heterosexual couples. This is a victory for same sex couples and a defeat to those who oppose same sex marriage. However, while effectively gutting DOMA, the court did not strike down the entire law. Its decision does not force states to recognize same sex marriages performed in other states.

In the case of Prop 8, the court determined that the plaintiffs had no standing to bring the suit to the Supreme Court, leaving intact the lower court decision that Proposition 8 is unconstitutional. This is at least a temporary victory for gay rights in California, and a defeat for opponents of same sex marriage. At the same time, it does not guarantee a right to same sex marriage in all 50 states. Instead, it leaves in place the right of individual states to ban same sex marriage.

No one should be surprised at the response of the religious extremists—today’s prophets of doom—who anticipate a continuing wrath of God. Reiterating comments I made for
Effie Magazine, “These two decisions are neither harbingers of a godless nation, nor reflections of a religious demise already in progress.”

The fact that people on both sides are displeased, should not suggest that the court was wise or balanced in rendering its judgments. Something more serious is in play. The Supreme Court displayed a disquieting lack of courage in its decisions. Not unlike Congress, the Court is incapable of leading. Worse, still, the Court seemed unwilling to live up to its most basic duty of guaranteeing equality and justice for all.

Whatever one’s positions on states’ rights, the U.S. Constitution stands as the foundation of equality, with the Supreme Court its guarantor. Individual states frequently enact laws that are determined to be unconstitutional; laws driven by principles based on differing faith or denominational values. However genuine these values, the United States is not a theocracy. The Constitution guarantees both freedom
of and freedom from religion.

In previous generations a commonly held belief was that blacks were either not human, as in the case of slaves, or at least not 100% human. Pains were taken to root these ideas in religious values and, ultimately, distorted interpretations of the Bible.

Today there are those who make the same claims about homosexuals. Every time some religious fanatic claims that homosexuality is unnatural or contrary to God’s plan, they are disguising the same kind of prejudices that denied all races equality under the law. Again today, individual states codify those prejudices in discriminatory laws. The fact that they root their claims in religious morality, merely discredits both faith and the law.

I am reminded that it was not until 1967 that a truer and more honorable Supreme Court invalidated all laws outlawing inter-racial marriage. Such laws are unconstitutional. I hope we do not have to wait until 2067 for a more courageous and faithful Supreme Court to invalidate laws opposing same sex marriage.

Our independence was declared on this simple, yet profound, principle: “We hold these truths to be self-evident, that all men are created equal…”
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Full Circle: Apartheid Returns to America

The word apartheid was never used in America to describe the era of segregation, nor was it used to describe race relations in general. It is a word sprung from the heart of the Afrikaans language to express a deep-seated prejudice against non-white South Africans, primarily blacks. What many do not know is that the South African system of Apartheid was directly modeled on the American system of segregation.

During its 40-year history, Apartheid came to be vilified as one of the most despicable institutional government policies of the modern world. Even before formally establishing this horrendous system, South Africa created legislation known as “pass laws” to regulate the movement of non-whites. These laws required non-whites to carry passbooks that proved they had a right to travel within certain areas of the country.

Not only an implement to control the movement of non-whites
within an area, these pass laws were also used to keep them completely out from others. For example, Indians were not allowed in the Orange Free State (one of the four provinces that comprised South Africa before the new constitution was established in 1996).

The United States of America became the recipient of a dubious gift from the U.S. Supreme Court in late June. Apartheid has returned to the nest. There is no other conclusion to be drawn from the Court’s decision on the Arizona anti-immigration law (SB 1070).

Given that Apartheid was such a disaster in South Africa, the chick was clever enough to return masquerading under a new name: Arizona v. United States, No. 11-182. Admittedly, it is not as simple or catchy as Apartheid, but it is just as effective.

It is true that the Supreme Court does not incorporate the word Apartheid into its decision. But that is just an insidious affront to the intelligence of U.S. citizens—or an acknowledgement of the lack thereof. It is almost as if they know, or inherently suspect, that their decision is a violation of human rights, dignity and justice.

It has almost become trite and tiring to reference Emma Lazarus’ poem at the foot of the Statue of Liberty whenever immigration comes up for debate. And yet, that poem should be as foundational in American life as the Constitution, itself. For, not unlike the Declaration of Independence, the poem enlists words of profound beauty to enshrine the values that define the new America. Values that underpin the Constitution and make it possible. Indeed, the poem appeals to and calls forth our better selves.

Most people find familiar the lines beginning with, “Give me your tired, your poor, your huddled masses yearning to breathe free.” They are the great rallying cry, proclaiming to all the world: Here lies a land of freedom and equality. We have always struggled to live up to the challenge. Sometimes we simply refuse to heed the call. Three sentences earlier in the poem, we read about the statue herself: “From her beacon-hand glows worldwide welcome.” That simply is no longer true.

Some might suggest that poetry is not law. Fair enough. But we are not just a nation of law. The constitution was not created in, nor does it exist in, a vacuum. If poetry espouses the values upon which the law is founded, then the law should reflect back those same values. On this point the Supreme Court failed.

The issue at hand is not whether someone entered the United States legally or illegally. If officers can demand papers when they stop someone, then people who are here legally will not be afforded the rights that are legitimately theirs. Let us at least be honest about two things. First, just as in the South Africa of old, the only people who will be questioned will be people of color. Secondly, the United States is no longer a land where everyone is welcome.

As the right wing xenophobes in more and more states seek to turn this national disgrace into law, the courts become the only recourse for a society seeking to regain its moral balance and sanity.

The justices on the Supreme Court swore to uphold the Constitution. Perhaps they should look not just to the letter of the law, but the principles that breathe spirit into the law.
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