*Lots of talk today about the upholding of prop 8 by the California Supremes. I’m struck by the New York Times’s clear and forceful conclusion that the California Supreme Court “got it terribly wrong.”As the Times editorial notes, besides denying basic fairness to gay persons, the court ruling sets a dangerous precedent that could permit the majority to diminish the rights of any targeted minority through voter initiatives. The editorial questions the argument of Chief Justice Ronald George in yesterday’s ruling that the abridgment of equal protection for gay citizens in the case of prop 8 is “narrow and limited.”
The Times finds this contention “disconcerting reasoning,” and notes that the one dissenting opinion in yesterday’s California Supreme Court decision, by Justice Carlos Moreno, finds that prop 8’s requirement of “discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality” in the state constitution. For Moreno, the “narrow and limited” exclusion of gays from the right of marriage “weakens the status of our Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
William Bradley’s Huffington Post piece on the “avoidable tragedy” of prop 8 offers similar analysis. Bradley looks at the use of such voter initiatives in California from an historical perspective.
He notes that, though these initiatives have enabled voters to keep at bay the power of corporate interest groups seeking to hold the state government hostage, they have also provided “a way to railroad issues in the Golden State . . . .” And that railroading has included previous attempts of the majority of state voters to deny rights to minorities: in 1964, Californians passed an initiative blocking “fair housing” legislation that sought to end housing discrimination against African Americans. This initiative passed by a whopping 65%, only to be overturned three years down the road by the U.S. Supreme Court.
And that’s the thing—the troubling thing—about these attempts by the majority to curb or turn back rights for minorities through the ballot box. The attempts inevitably run up against the strictures of our national constitution, which recognizes the fundamental rights of all citizens, regardless of what the majority may think, choose, or wish in the case of any targeted minority. Though the constitution is not always upheld by federal judicial decisions, and though the process by which the courts arrive at judgments that unambiguously recognize the constitution’s provision of equal rights for all is often tortuously slow, there is built into our democratic life a thrust to equality that makes it impossible to keep a minority in its “narrow and limited” place forever.
The history of legislative and voter-driven attempts to deny rights to targeted minorities in the United States is shameful and long. As one reads the crowing of religious right spokespersons in the last two days, about the “victory” their side has “won” for free speech and majority rule, one wonders if these spokespersons have any inkling at all of what has been done by the majority—in violation of the constitution—in this nation in the past. As I have noted in a previous posting, in 1859, my state’s legislature was delighted to pass a law requiring that all free people of color be required to leave the state immediately, since there was no longer a “place” for any person of color in this state who was not enslaved.
And as the legislature distinguished itself by passing this act, all the while quoting the bible, a majority of voters approved. The rights of minorities should never be up for grabs through popular vote—not when we have a constitution that guarantees rights to all as a constituting factor, a sine qua non, the glue, of our democratic society.
And separate-but-equal arrangements that comprise “narrow and limited” inequities for targeted minorities inevitably include other inequities, whose driving force is the savage need of social groups to keep some targeted group in its “place” through violent repression enshrined in those same “narrow and limited” inequities the majority wishes to dismiss as mere annoyances for a minority group that otherwise has it good.
As Timothy Kincaid notes in a Box Turtle Bulletin posting today about the “narrow and limited” exception gays now enjoy under California law, John Lewis, who has fought long and hard for African-American civil rights throughout a distinguished career, noted in 2003,
I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.
Some say let’s choose another route and give gay folks some legal rights but call it something other than marriage. We have been down that road before in this country. Separate is not equal. The rights to liberty and happiness belong to each of us and on the same terms, without regard to either skin color or sexual orientation.
“Narrow and limited” exceptions to equality undermine the very notion of equality, Kincaid concludes. There are no narrow and limited exceptions to equality, and separate and equal arrangements are, by their very nature, unequal. They are designed to be that way. The imposition of “narrow and limited” exceptions on a targeted minority that is kept separate from the majority, while being assured that its separation does not represent inequity, is designed to let that minority know that it is unequal. And that it is unwanted—in the mainstream, among those who enjoy full rights and full humanity.
And where is this drive to keep some Americans separate and confined to the enjoyment of “narrow and limited” exceptions coming from? Sadly—but just as it did during the period of slavery and the civil rights movement—from the churches, from communities that sing each Sunday about the wideness of God’s mercy and the kindness of God’s justice.
As Peter Laarman notes at Religion Dispatches today, the deciding factor in the choice of the California Supreme Court to back-step on its May 2008 defense of gay human rights is “bad religion.” Laarman notes the way in which powerful, well-funded religious groups used their resources to frighten and misinform California voters in the case of prop 8, and in this way to thwart rather than promote the democratic process and the conversation on which that process depends, if democracy is to work effectively.
As I do, however, Laarman finds it particularly disconcerting when our allies in progressive movements remain silent about the majority’s insistence that we be content with “narrow and limited” exceptions to equality, while they simultaneously decry human rights violations in every other area possible:
I worry about their enablers. I worry about those who deem certain Evangelical leaders “good” on other justice issues (climate change, torture, workplace justice) and thus exempt these leaders from any criticism for taking retrograde positions on sexual and gender justice. I am speaking here of leaders who are well known for their deafening silence on equal rights for LGBT people and families or else (like Samuel Rodriguez) well known for their active participation in efforts to consign gay people to a separate and unequal ghetto.
That these leaders have been given a blanket welcome as social progressives is actually quite astonishing.
Enablers: you know who you are. Don’t you have even a tiny twinge of remorse at a time like this?
Thankfully, in the midst of his curious silence about proposition 8 or anything having to do with gay rights or gay human beings, period, Mr. Obama did at least find time yesterday to sign a proclamation declaring this National Hurricane Preparedness week (H/T Pam Spaulding at Pam’s House Blend).
Oh, the humanity of it . . . .
*I've noticed that the graphic I chose for this posting is very similar to one Timothy Kincaid uses in the Box Turtle Bulletin posting I note above. It wasn't my intent to copy, though I certainly do value Timothy Kincaid's work and have learned much from it.
