Equality and Liberty

  • May 1, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Follow him on Twitter @atibaellis.

    The New York Times recently published a story entitled, “1.5 Million Missing Black Men.” The graphic portrayed how the war on drugs, American policies of mass incarceration and other structural forces, have left these African American men and their communities oppressed in the United States because these men are incarcerated, disabled from full citizenry or deceased.

    A purely academic discussion of this data and its meaning was what this blog post was supposed to be about.  But over the past weekend, we saw the city of Baltimore, Md. react to the fact that Freddie Gray is now missing forever.  Gray’s fatal injuries, inflicted during his custody of the Baltimore Police Department, provide us a specific case of an African American man going missing. Mr. Gray’s death puts into relief how one person loses his life due to the policies and structures of inequality, and the Baltimore police officers involved have now been charged in Mr. Gray’s death.

    Yet it isn’t simply Gray’s death that teaches us something about structural racism. The uprising that occurred in reaction to Gray’s funeral, the reaction to opinion leaders and the Internet opinion-sphere all teach us something about how our language regarding racism falls prey to a gap of misunderstanding and misperception. This is a multilayered problem reflective of the complicated tableau of race in America.

    On one level, Gray’s death is one more tragedy that we can add to the long list of tragedies that seem to target African American men. Gray is forever missing, along with Eric Garner, Tamir Rice, Michael Brown and many more. And, as Professor Elwood Watson points out, black women like Dr. Ersula Ore or Kathryn Johnston similarly suffer violence, abuse and death due to this same system of oppression.

    Though the factual circumstances vary, it appears that all these people I’ve named are the casualties of either the war on drugs, the effects of declaring poor minority neighborhoods “high crime neighborhoods,” police bias against people of color or all of the above.  This results in their individual and communal struggles against siege policing and its short and long-term effects. Because of these factors, these men and women lose their lives or their livelihoods in a manner not subject to due process. 

  • May 1, 2015

    by Paul Guequierre

    Earlier this week the Supreme Court heard oral arguments in Obergefell v. Hodges, the consolidated marriage equality cases. It is a critical case in the fight for equal rights for LGBT Americans and the nation now waits to hear if marriage equality will soon be the law of the land (my prediction is it will be).

    The Supreme Court finally decided to take a marriage equality case after declining several when the U.S. Court of Appeals for the Sixth Circuit ruled a marriage ban constitutional. This was the circuit split we had all been waiting for. But before the Sixth Circuit ruling, every other marriage ban before a federal court had been knocked down. The U.S. Court of Appeals for the Ninth Circuit was no exception, striking down three separate marriage bans last year and making marriage equality a reality throughout the circuit. Yet there is one governor who is pulling a Roy Moore.

    After a lesbian couple filed a lawsuit after being denied a marriage license, Guam Attorney General Elizabeth Barrett-Anderson last month issued an opinion that the territory should follow the rulings of the Ninth Circuit (which it falls under) and should immediately start issuing marriage licenses to same-sex couples. Seems like an open and closed issue, right? Enter Republican governor Eddie Calvo.

    Calvo ordered the Public Health Department, the territory agency responsible for issuing marriage licenses, to hold tight. Until his legal team has the chance to do its own legal research, no marriage licenses will be issued to same-sex couples. And he continues to punt. He has asked for the legislature to take up the issue, but he has not said he wouldn’t veto a marriage equality bill. He has asked for a public referendum, putting the rights of a minority up to the will of the majority, not to mention engaging in a costly endeavor only weeks or months before the Supreme Court rules on the issue once and for all.  

    So what are loving and committed same-sex couples on the island supposed to do? It would appear they have two options, simply wait or travel to a marriage equality state (by the way the distance a couple would have to travel to get married is 3,950 miles).

    Governor Calvo is defying the Ninth Circuit. He is stalling. When the marriage equality story is written – and it will be soon – Governor Calvo will be on the wrong side of history. Biba Guam and Hafa Adai, marriage equality. 

  • April 30, 2015
    Guest Post

    by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.  It originally appeared in the National Law Journal.

    Love and commitment have nothing to do with marriage.  So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples.  Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.

    The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable.  Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases.  Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.

    The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws.  There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out.  Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption.  And no state, Justice Stephen Breyer noted, favors biological children over adoptive children.  Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage.  As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

  • April 29, 2015
    Guest Post

    by Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund. Follow her on Twitter @Sifill_LDF.

    Yesterday, as the U.S. Supreme Court heard oral arguments about whether states can exclude gays and lesbians from the benefits of marriage, the crisis in Baltimore flooded the airwaves and brought renewed attention to long-simmering issues of racial justice. While the two issues might seem worlds apart, the often-overlooked truth is that both come down to the fundamental question of whether we as a nation take seriously the responsibility to confer equal dignity upon every citizen.

    It is Justice Anthony Kennedy who has elevated the principle of human dignity in a series of rulings. In a 2003 decision that decriminalized “homosexual conduct,” Justice Kennedy stressed that adults must “retain their dignity as free persons.” When the Court eliminated the death penalty for children, a majority led by Kennedy explained that the U.S. Constitution “reaffirms the duty of the government to respect the dignity of all persons.”  In a 2013 decision striking down the so-called Defense of Marriage Act, Kennedy’s opinion emphasized the principle that gays and lesbians “occupy the same status and dignity” as heterosexuals.  Yesterday, at oral argument, Kennedy again raised this concern, stressing that the whole purpose of marriage is “enhancing the dignity of both the parties.”

    Yet it is not only Justice Kennedy.  In 1954, the Court in Brown v. Board unanimously struck down segregation in schools, precisely because it engendered a “feeling of inferiority as to [students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”  In upholding the Civil Rights Act of 1964, the Court stressed “the personal dignity” of individuals who seek to access public accommodations on an equal basis.

    Most relevant to marriage equality, dignity has animated the NAACP Legal Defense Fund and its litigation dating back to the 1960s case of Loving v. Virginia.  Loving involved a married, interracial couple who were dragged out of bed by police in the middle of the night, hauled to jail, and eventually exiled from the state for 25 years in return for a suspended one-year jail term.  Not coincidentally, Virginia charged the Lovings with violating “dignity of the Commonwealth.”  LDF argued that this was unconstitutional and violated the fundamental right to marry and the justices unanimously agreed.  Building upon Loving, LDF filed a brief last month in the Supreme Court underscoring that “all persons yearn and deserve to be treated with equal dignity and respect, both individually and as married couples.”

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”