• September 17, 2015
    Guest Post

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

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In some of the most famous words ever written by the Supreme Court, Chief Justice John Marshall declared in McCulloch v. Maryland in 1819, we must “never forget that it is a constitution we are expounding. . . .  [A] constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” This is a clear expression of the need for a living Constitution, one whose meaning evolves by interpretation as well as by the very difficult process of amendment.

    This should not be controversial. The only way that the nation can be governed by a document written in 1787 for an agrarian slave society is for its intentionally broad, open-textured language to be given contemporary meanings. There is no clear “original understanding” of any constitutional provision and even if it could be identified, it should not be controlling today. The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. But that does not mean that Brown v. Board of Education was wrongly decided.

    This would be unremarkable except that Justice Scalia and other conservatives have argued for decades that the meaning of the Constitution is limited to its original understanding. This philosophy, “originalism,” says that a constitutional provision means the same thing today as when it was adopted and that this meaning can be changed only by constitutional amendment.

    Never has a majority of the Court embraced this restrictive approach. One of the most important aspects of the Court’s decision in June recognizing a constitutional right to marriage equality for gays and lesbians was it again explicitly rejected originalism.

    In Obergefell v. Hodges, the Court declared unconstitutional laws in Kentucky, Michigan, Ohio and Tennessee that prohibited same-sex marriage. Obviously, no one contends that the drafters of the Fourteenth Amendment meant to include a right to marriage equality for gays and lesbians within its protections of due process and equal protection. The majority of the Court was clear that this does not matter because the understanding of constitutional provisions evolves over time.

    Justice Kennedy, writing for the majority, observed that “[t]he identification and protection of fundamental rights . . . has not been reduced to any formula.” He explained why constitutional interpretation cannot be limited to understandings of the past: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.  If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”

  • February 27, 2014
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    Arizona Governor, Jan Brewer said she’d do the right thing, and she did. Good for her; she made the correct decision.

    The right decision for the right reason would have been for her to say outright that Senate Bill 1062 was simply religious bigotry against LGBT people and had no place in Arizona’s civil code. End of story; end of bill.

    Instead, Governor Brewer vetoed the proposed law because of the outcry of big business.  Corporate America – hailed by some in the popular media as a “beacon of progress” – has come to realize that conservative religious zealotry hurts the bottom line. Bigotry and business seemingly don’t make good bedfellows any more – as they may well have when the conservative Christian Right was in its heyday not too many years ago.

    I suggest what is happening here is not that Corporate America has suddenly developed a social and moral conscience. Rather, big business does what it always does where constitutional rights are concerned. If embracing those rights adds luster to the “brand” and dollar signs to the bottom line, then count the big guys in. If the opposite is true -- equal pay and freedom of choice for women -- for example, well that’s likely to be another story. In the end, greed usually trumps God, and that’s what happened here.

    But am I complaining that the LGBT Community won this round in the way it did? No I am not.  A win is a win; and if one’s frenemies are on your side in the battle, we all get to bask in the victory.

    But before America’s newest beacons of progress get complacent on this issue, be aware that other States are still in the process of putting “right to discriminate” laws in play – Georgia, Idaho, Mississippi, Missouri, Ohio, Oregon, South Dakota, Colorado, Kansas, Maine, Tennessee and Utah.

    All of us who are committed to equality under the law won this battle; but the war is not over.  We’ll take the win; and we’ll take your help Corporate America. 

    Homophobic discrimination is wrong for the right reasons – and for the wrong reasons as well. Pick your weapon; it’s the result that matters.

  • August 28, 2013
    Guest Post

    by Gabriel “Jack” Chin, Professor of Law, University of California, Davis School of Law. Professor Chin is the author of The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty in the Harvard Civil Rights-Civil Liberties Law Review(with Randy Wagner). This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.    

    As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.

    On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today.  African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment. 

    But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs.  The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement.  Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race.  The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.

    America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.  

  • August 24, 2012

    by Jeremy Leaming

    The U.S. Department of Justice has made historic strides in bettering lives of the LGBT community through efforts to promote equality, but Attorney General Eric Holder told an Aug. 23 gathering of the National LGBT Bar Association in Washington, D.C. that he needs the continued involvement, support and passion of its members and other advocates of equality to continue the “momentum.”

    Providing the keynote address at the LGBT Bar Association’s 2012 Annual Lavender Law Conference, Holder did not reveal any new information regarding the DOJ’s efforts to protect the rights and advance equality for LGBT persons, or announce any new initiatives. In an election year that’s hardly surprising, and for this audience, it really did not matter.

    So reciting the DOJ’s and the administration’s well covered efforts was enough for this crowd and sufficient to illicit rounds of ongoing applause. In a speech less than 30 minutes, Holder breezed through the Obama administration’s pro-equality work and provided plaudits for individual lawyers and advocates fighting to advance equality. (See C-SPAN video of Holder's address below the break.)

    “We come together tonight at an exciting moment; thanks to the tireless work of advocates and attorneys in and far beyond this room, our nation has made great strides on the road to LGBT equality and the unfinished struggle to secure civil rights of all Americans,” Holder said. “We can all be proud today,” he continued, “that for the first time in history those who courageously serve this country need no longer hide their sexual orientation. As we approach the one-year anniversary of the end of ‘Don’t Ask, Don’t Tell,’ it is worth celebrating the fact that so many brave souls can serve proudly, honorably, honestly, openly and without fear of discharge.”

    Pivoting quickly to another administration action, Holder reminded the audience at the Washington Hilton that the DOJ no longer defends a major, and onerous provision of the so-called Defense of Marriage Act, the anti-gay measure signed into law by former President Bill Clinton. (It took awhile for the administration to stop defending the blatantly bigoted law for the executive branch has a tradition of defending the constitutionality of acts of Congress.)

    “We can also take pride in the fact that last year, President Obama and I directed the Justice Department not to defend the constitutionality of Sec. 3 of the Defense of Marriage Act,” Holder said. “Since then we’ve seen an increasing and encouraging number of courts hold this provision unconstitutional.”

  • May 18, 2012

    by Jeremy Leaming

    Putting aside the North Carolina vote embracing discrimination against lesbians and gay men, the struggle for marriage equality has seen more victories of late than defeats. Today, for example, Maryland’s highest court, the Court of Appeals, ruled that same-sex marriages recognized in other states, such as New York or Connecticut, will be lawfully recognized in Maryland. The case is Port v. Virginia Anne Cowan. The Maryland legislature earlier this year also passed a same-sex marriage law.

    But marriage equality, while an important component to equality, is hardly the pinnacle. As Andy Birkey notes for us in an extensive piece for The American Independent, it is still legal for public officials in the vast majority of states to exclude members of the LGBT community from jury service.

    The Constitution, Birkey notes, says criminal defendants are entitled to an “impartial jury,” and the U.S. Supreme Court has determined that jurors cannot be excluded because of gender or race. Sexual orientation and gender identity, however, remain open to discrimination.

    “Federal courts,” he writes, “have consistently declined to prohibit attorneys from openly discriminating against LGBT people during jury selection. And as recently as last year, the U.S. Department of Justice told a panel of judges that it ‘takes no position’ on whether the case law that prohibits attorneys from removing jurors based on race or sex should be extended to cover sexual orientation.”

    Only a few states have taken action to prevent government officials from yanking prospective jurors because of beliefs they are gay or transgender. California is the exception. When former Calif. Gov. Gray Davis enacted a law barring such discrimination, he said “No Californian should be deprived of the opportunity to share in our system of justices simply because they are gay or lesbian.”