North Carolina Embraces Discrimination

By Jeremy Leaming, cross-posted from American Constitution Society

The North Carolinians who voted to alter the state’s constitution to ban same-sex marriage were largely moved by fear-tactics fueled by far right religious groups bent on punishing lesbians and gay men. The vote also makes North Carolina, as The New York Times notes, the last state in the South to marginalize gay people with a constitutional ban on same-sex marriage.

Until yesterday’s vote, a string of states had provided victories for marriage equality. (In February, Maryland joined seven other states and the District of Columbia in approving same-sex marriage.) North Carolinians, however, were fueled by an ugly animus toward gay people. Not only did the state’s constitutional amendment ban same-sex marriage it is so vaguely worded that many commentators have argued that it would outlaw domestic partnerships or civil unions.

A group of North Carolina family law professors warned voters about the scope of the antigay amendment.

Maxine Eichner, a law professor at UNC School of Law, in a video focusing on the sweep of Amendment One, said, the amendment would “certainly ban civil unions, it would ban domestic partnerships at the state level, and it would also ban the domestic partner insurance benefits that a number of municipalities and counties currently provide to their employees.” (Eichner is author of an ACS Issue Brief on the Employment Non-Discrimination, aimed at banning employers from discriminating against workers or potential employees based on their sexual orientation or gender identity.)

The Daily Beast blogger Andrew Sullivan in a post dubbed “The Politics of Spite,” slammed the reach and impact of the vote:

Remember how meretricious this assault on gay couples was. They already are banned by state law from marrying. Now their own state constitution bans them from any civil rights as couples whatsoever: no domestic partnerships, no civil unions, nothing. It’s an act of pure punishment of citizens who are gay, a deliberate psychological blow to their self-esteem, their sense of citizenship, their core equality as human beings. A 60 percent majority decided that 2 percent of their fellow citizens are and must remain inferior in law. When gay rights advocates seek recourse in the courts, is it so surprising?

Sullivan noted the involvement of the so-called National Organization for Marriage, a Religious Right outfit that has spent boatloads of money and many years on demonizing gay people and promoting bigotry. The group claims it does not advacne bigotry, but instead protects "marriage and the faith communities that sustain it."

President Obama, who has not embraced marriage equality, but whose administration has stopped defending the so-called Defense of Marriage Act (DOMA) in court and ended the military’s “Don’t Ask, Don’t Tell,” policy said he was “disappointed” in North Carolina’s vote. (DOMA is a Clinton-era federal law that discriminates against lesbians and gay men.) Later today, the president is expected to address gay marriage in an interview with ABC News, according The Huffington Post’s Michael Calderone.

Regardless of what the president thinks of same-sex marriage, the battle to advance equality will continue to be waged largely in the states.

University of Minnesota Law School Professor Richard Painter in a post for Legal Ethics Forum notes the forthcoming battle in his state to ban same-sex marriage, writing, in part, “Most of our law faculties oppose it, at some law schools unanimously. Unlike North Carolina, Minnesota was not one of the original thirteen colonies to fight for liberty in the 1770s, but hopefully this fall we will demonstrate a better understanding of what the continuing fight for liberty is all about.”

Whether other states refuse the despicable path that North Carolina voters took, will depend on lot on whether their voters refuse to be divided and swayed by the hateful rhetoric and strategy that emanates from groups like the National Organization for Marriage.

Judicial Activism: Right Wing Edition

Judge Janice Rogers Brown

Whatever disappointments the left may have with President Obama, it must be understood how devastating a Romney Presidency would be in terms of the Supreme Court (and lower federal courts) and the preservation of fundamental rights, liberties and democratic principles.  (See Supreme Court Matters; Romney Gets Borked.)  

Janice Rogers Brown was an extreme right wing justice on a very right wing California Supreme Court from 1997 to 2005, when she was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bush, where she currently sits.  Rogers Brown, who has been known to trumpet Ayn Rand and decry Supreme Court decisions upholding the New Deal as "the triumph of our own socialist revolution," is precisely the kind of judge likely to be nominated by the next Republican president.  Professor Adam Winkler cites a recent Brown opinion to illustrate why this should scare us into action.   -- Lovechilde

Startling Conservative Judicial Opinion Should Motivate Progressives

By Adam Winkler, cross-posted from American Constitution Society

The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary.  Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

The 65th Anniversary Of Jackie Robinson's Debut

By John Schachter, cross-posted from American Constitution Society

To many wise people, baseball possesses an importance beyond the comprehension of non-fans. Emotions and moods ebb and flow with the fate of our favorite teams. Baseball lingo fills our conversations, as we talk about a ballpark figure, a whole new ballgame, playing hardball, covering all the bases, stepping up to the plate and hitting it out of the ballpark. Or someone batting a thousand or being off base, something being bush-league or inside baseball. And, of course, people invoking the infield fly rule because of a routine and playable, if fair, pop-up in the infield with less than two outs and the bases loaded or runners on second and third. (OK, maybe that’s not as common.)

But baseball as hobby, diversion and pastime is merely one aspect of the game. The sport is sometimes so much more, a reflection of our times and our society, for better and for worse. This Sunday, April 15, will be a reminder of one of those “for better” examples. That day will mark the 65th anniversary of Jackie Robinson breaking the so-called color barrier and making his major league baseball debut. Teams and fans across America will celebrate Jackie Robinson Day to pay tribute to the son of Georgia sharecroppers who grew up to become an incomparable leader and symbol of civil rights challenges and advancement.

Humorist Dave Berry once pinpointed what he saw as a critical difference between the sexes. “If a woman has to choose between catching a fly ball and saving an infant's life,” Barry remarked, “she will choose to save the infant's life – without even considering if there are men on base.” While men and women may quibble over various aspect of the sport, there is virtual unanimity when it comes to recognizing the magnitude of Jackie Robinson’s role.

The Major League Baseball tribute to Robinson on his day includes all players wearing his uniform number 42, which has otherwise been retired by all teams. The league website devotes a page to Robinson’s story and his “immeasurable impact” on the game and beyond. The page salutes Robinson’s courage, commitment, determination, teamwork, persistence, integrity, citizenship, excellence, and quest for justice. Countless other adjectives could further describe Robinson.

Robinson’s career numbers are impressive enough. A .311 batting average, an on-base average of .409, nearly 200 stolen bases, a Rookie of the year Award in 1947 and a Most Valuable Player Award two years later when he hit a career-high .342 to go with 203 hits, including 38 doubles, 12 triples, 16 home runs, plus 124 runs batted in. But, of course, Jackie Robinson is so much more than his stellar statistics.

“If Jim Crow seems distant today, it is because of men like Robinson,” wrote Chris Lamb, a professor of communication at the College of Charleston. “We need to remember him for what he accomplished inside the white lines of baseball, but we also need to remember him for what he accomplished outside. His life teaches us that progress often depends on individuals willing to sacrifice themselves for something bigger.”

Few people can imagine the contemptible abuse Robinson faced when he joined the Dodgers, from fans, opponents, and even some teammates. Aside from the on-the-field challenges of beanballs and high-flying spikes aimed his way, Robinson had to deal with a steady flow of death threats in nearly every city to which the team traveled. But Robinson rose above the hatred and proved his critics and detractors wrong. His success made him an All-Star player and civil rights leader.

“There's not an American in this country free until every one of us is free,” Robinson said. He knew his success was but a small step toward a much grander goal. “The right of every American to first-class citizenship is the most important issue of our time.” Some 65 years after Robinson set foot upon his first major league field, the fight for freedom for all people continues. But thanks to his efforts along the way, we all have that much less to travel to see our ultimate goals achieved.

Robinson died far too early, at the age of 53 in 1972. He’s buried in Brooklyn next to his son and mother-in-law. His gravestone reads, “A life is not important except in the impact it has on other lives.”

John Schachter is the Vice President of Public Education and Outreach for American Constitution Society