SCOTUS and The Economy Of Liberty
Tuesday was one of the gloomiest days in American judicial history. In one day, the Supreme Court managed to roll back civil liberties by several decades through a savage gutting of the Voting Rights Act, the destruction of workplace harassment and discrimination protections, and a near-complete revocation of your right to remain silent. It was heartbreaking, a massive set back for women, undocumented immigrants, and people of color all across the nation, an attack coordinated by an ultra-conservative leaning judiciary that has zero compunctions when it comes to legislating from the bench.
On Wednesday, that very same court struck down Proposition 8 – California’s infamous anti-marriage equality statute – as unconstitutional, as well as a key provision in the Defense Of Marriage Act that prevented the LGBT community from having their marriages federally recognized, a huge leap forward for millions of gay, lesbian, and transgender peoples all across the nation.
Try as I might, I just don’t feel that compelled to celebrate.
The LGBT community has made amazing advances in gaining legitimacy over even just the last ten years, skyrocketing to mainstream acceptance in a coordinated effort of the kind that hasn’t been seen by any marginalized group since the Civil Rights Movement. They deserve all the success and congratulations that one can muster. But drawing comparisons between the struggle for marriage equality and the struggle for racial equality only makes Wednesday’s victory all the more bittersweet.
Tens of thousands of courageous black and white men and women of all ages and incomes were arrested, beaten, and killed standing in defense of their freedom during the Civil Rights Movement. The Voting Rights Act of 1965 was written in the blood of true patriots, people who were willing to lay down their lives if necessary for the right to have their voices heard in the electoral process. To those that fought and are still alive, yesterday’s ruling on the VRA’s Section Four – the preclearance requirement that marks the cornerstone of the act – was more than a slap in the face: it was a near-complete invalidation, a rejection of nearly everything for which they fought and died.
Congressman John Lewis (D-Ga), one of the leading participants in the Civil Rights Movement and referred to by Ari Berman of The Nation as the person “most responsible for [The Voting Rights Act's] passage and its overwhelming reauthorization four times by Congress,” called the decision “a dagger in the heart of the Voting Rights Act,” and a “major step back” for civil liberties.
“These men that voted to strip the Voting Rights Act of its power, they never stood in unmovable lines, they never had to pass a so-called literacy test,” he said. “It took us almost 100 years to get where we are today. So will it take another 100 years to fix it, to change it?”
-Congressman John Lewis
I don’t wish to in any way cast aspersions against the LGBT community’s victory against DOMA and Prop 8; as I said before, it’s a landmark achievement, hard-fought and richly deserved. But in context to these other SCOTUS rulings, it feels like a hollow victory. Consider Tuesday’s other SCOTUS rulings for a moment: the rolling back of workplace harassment and discrimination protections will have just as drastic an effect on the LGBT community as it will on women and people of color (if not more in certain geographic areas), and while the Miranda decision arguably affects people of color the most, in a broader sense it’s yet another major setback in the struggle for the civil liberties of all, coming at a time when they are already under siege from almost every perceivable direction.
There was a glimmer of good news on Tuesday, when a complaint against affirmative action in the university system that managed to make its way to the Supreme Court (Fisher v. University of Texas at Austin) was shot back down to the lower courts for re-examination, upholding the practice for the foreseeable future. An important battle was won there, to be sure. But at the same time, if people of color start getting legislated out of the voting process en masse, upholding affirmative action will soon become the least of their problems. Texas certainly didn’t waste any time putting new voting laws on the books; it’s doubtful that the rest of the South will, either.
There’s no denying that marriage equality is a fundamentally important issue. The right to have your love recognized by the state (and more importantly, the right to receive the legal advantages that love entails when registered with said state) is something that should not be denied to anyone. And every movement for equality needs its rallying point, something simple, powerful and as universally appealing as possible. For the LGBT community, it’s marriage equality: the Right To Love, and be loved. But for those LGBT peoples across the nation who barely have the Right To Live, let alone the ability or the will to marry, the Right To Love is a joke. Drug abuse, homelessness, and suicide plague the LGBT community, particularly among the youth. The marriage equality debate has sucked up all the oxygen from these issues; they don’t offer the same ‘poetic justice’ appeal that the Right To Love does, so they got left on the cutting room floor. Now that these achievements have been made, it is my sincere hope that, in the next chapter of the struggle for LGBT equality, that same sense of poetic justice can be applied to the Right To Live movement.
Dwight R. Lee, a business and economics professor at Southern Methodist University, wrote an essay in 1987 called “Liberty and Individual Responsibility”, where he discusses the concept of an “economy of liberty”. He writes:
[A] careful examination of how a political economy based on classical liberal principles…reveals a complicated interaction between the social institutions necessary for liberty and the exercise of liberty. The exercise of liberty, unless tempered by a responsibility that can never be imposed entirely by a force external to the ethical convictions of the individual, will with time undermine the social institutions upon which liberty depends.
What Lee is describing is the fundamental truth behind political compromise: a horse-trading of sorts with our civil liberties, where in order to gain certain rights for some, we must either give up different rights for others, or at least be incredibly selective about where we spend our political capital. But as the American conservative movement has continued to radicalize over the last several decades, I find that progressives are giving up more to get less as time goes on. That being said, it’s hard not to feel like America got a raw deal in our latest round of SCOTUS negotiations. But it’s even harder not to feel like a total hypocrite for saying so.
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