As reported in yesterday's post, the House of Representatives has filed briefs in the case of Windsor v. United States in federal district court in New York.  Yesterday's post described the House's Answers to Interrogatories.   Today's post summarizes the House's Brief in Opposition to Plaintiff's Motion for Summary Judgment.

The summary judgment brief filed by the House of Representatives is long on process but short on substance.  The House focuses nearly exclusively on the threshold question "Are same-sex couples a suspect class?"  It devotes almost no attention to the question, "Is there a legitimate reason for the federal government to deny recognition to same-sex marriages?"

1.  Are same-sex couples a suspect class?

The first heading in the House brief on this subject makes a bold yet doubtful claim:

Persuasive Authority Unequivocally Supports the Conclusion that Homosexuals Clearly Are Not a Suspect or Quasi-Suspect Class

Before turning to substance of this claim, I have a couple of quibbles with the wording of the House's argument.  First of all, it would be more respectful to use the term "gays and lesbians" rather than the term "homosexuals."  Under the circumstances the House attorneys should be careful about how they refer to their opponents.  Second, every first-year law student learns that the adverb "clearly" is a red flag for lawyers.  Clear propositions are self-evident – unclear ones need semantic enhancement.  And an examination of the case law reveals that the House lawyers are considerably overstating, if not misstating, the state of the law.

Existing case law does not "unequivocally" establish that sexual orientation is not a suspect classification; instead the recent trend of judicial decisions are "clearly" going the other way.  Recent cases either applying heightened scrutiny or finding it unnecessary to apply the higher standard include:

In re Marriage Cases, 43 Cal.4th 757 (2008) (striking down state laws prohibiting same-sex marriage under strict scrutiny)

Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (applying intermediate scrutiny in striking down state law prohibiting same-sex marriage)

Varnum v. Brien, 767 N.W.2d 862 (Iowa 2009) (applying intermediate scrutiny to strike down state law prohibiting same-sex marriage)

Perry v. Schwarzenegger ["Prop 8 case"], (Northern District California, 2010) (finding strict scrutiny applicable, but striking down Proposition 8 because it lacks a rational basis)

Gill v. Office of Personnel Services, 699 F.Supp.2d 374 (D. Mass. 2010) (striking down DOMA on the ground that it lacks a rational basis and not reaching the question whether sexual orientation constitutes a suspect classification)

Log Cabin Republicans v. United States, (Central District of California, September 9, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")

Major Margaret Witt v. United States Department of the Air Force, (Western District of Washington, September 24, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")

These decisions constitute "persuasive authority" for the proposition that gays and lesbians are a suspect class – that they deserve and need protection by the courts from hostile legislation.  At a minimum the relevant precedent is not "unequivocally" in favor of the rational basis test.

Turning from precedent to doctrine, the House brief then asserts that gays and lesbians satisfy none of the four requirements for being a suspect class, elements that the brief correctly identifies as "History of Discrimination," "Ability to Participate in or Contribute to Society," "Immutability," and "Political Powerlessness."  This portion of the brief constitutes by far the greatest proportion of the 25-page brief in support of DOMA.  In contrast, less than two pages of the brief – pages 23-24 – address the substantive reasons supporting the constitutionality of the law.  The House's arguments on each element of suspect class analysis are summarized below.

a.  History of Discrimination

The House of Representatives contends that the history of discrimination against gays and lesbians is relatively recent in origin and is rapidly dispersing.  First, the House brief agrees with one of plaintiff's experts that discrimination against gays and lesbians

is a unique and relatively short-lived product of the twentieth century.

Then, the House observes that

whatever the historical record of discrimination, the most striking factor is how quickly things are changing.

This argument may serve to strengthen the House's contention that sexual orientation is not a suspect class, but it completely undercuts the principal argument relied upon by Supreme Court Justices like Antonin Scalia that discrimination against gays is lawful because of longstanding moral traditions.  The House brief virtually embraces Justice Kennedy's finding of an "emerging awareness" of the essential equality of gays and lesbians.  The House is choosing to characterize the discrimination of which DOMA is a product as a short-lived aberration of American history rather than a longstanding and brutally enforced cultural and religious taboo.  This litigation strategy is the forensic equivalent of an "own goal."

b.  Ability to Participate in or Contribute to Society

The House brief on this point is less than a page long.  The key sentence is:

The Congress who enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. 

In this brief the House does not bother to state what those goals are.  Instead, the House brief merely incorporates by reference its other brief, the Response to Interrogatories described in yesterday's post.  That brief merely set forth a list of goals such as defending the institution of marriage but it made no effort to offer any evidence tending to prove that gays and lesbians lack the ability to participate in or contribute to either to the institution of marriage in particular or to society in general.  The House simply punts on this point, essentially conceding the issue to the plaintiffs.  The House brief states:

Moreover, as with historical considerations, Plaintiff's question-begging contention that homosexuality is never a relevant or rational basis for classification is hardly the sum total of the heightened scrutiny analysis.

So, on to the next two points.

c.  Immutability

On this point the House brief is two pages long, and once again it voices a less than full-throated defense of DOMA.  The House chooses to mount a semantic argument against the concept of immutability:

Plaintiff's claim runs headlong into the differing definitions of the terms "sexual orientation," "homosexual," "gay," and "lesbian" ….

OohhKaayy.  The House attorneys seem to believe that their best approach to resolving the question of immutability is a socratic attack on the entire concept of sexual orientation.  If we do not know what the term means, how can it be an immutable characteristic of a person's personality?

The House brief also seems to find it significant that the plaintiff's experts concede that a person's sexual orientation cannot be determined at birth, and that it may not clearly emerge until after puberty or well into adulthood.  The relevant questions are, of course: "Does a mature person "choose" his or her sexual orientation and is he or she able to change it?"  If not, the trait is immutable.  The House brief invokes one study finding that 12% of self-described gays and lesbians admit to "some" or "much" choice in their sexual orientation.  I don't think that is enough to rebut what everyone knows from personal experience - there is very little choice in the matter of sexual attraction.

d. Political Powerlessness

It is on this point that the House brief concentrates.  Almost half of the brief is devoted to rebutting the proposition that gays and lesbians need protection from the majoritarian political process.  The House brief rather bitterly recites the recent string of electoral and legislative victories of the gay rights movement to prove that gays and lesbians are not politically powerless and accordingly that it is unnecessary for the courts to carefully examine the laws that were enacted against them.

The weakness of the House's argument  lies in the fact that at the time that DOMA and other discriminatory laws were enacted, gays and lesbians were a relatively powerless minority.  Hostile legislation was introduced in Congress and submitted to the voters in referenda in order to advance the interests of a major political party.  Here in Ohio, there was a conscious and deliberate effort to "rally the base" of Republican voters in the 2004 presidential election by placing Ohio Issue 1 on the ballot.  At the time, it was a winning strategy.  The House brief admits that the political landscape has substantially changed from what it was when these laws were enacted:

According to Gallup polling, between 1996 and 2011 the portion of the United States population who believed that same-sex marriage should be recognized increased from 27% to 53%.

I don't think that it can rationally be disputed that gays and lesbians have suffered outrageous discrimination, that they are fully capable of participating in and contributing to society, that sexual orientation is for the vast majority of people an immutable characteristic, and that when discriminatory laws like DADT and DOMA were enacted gays and lesbians had far less political power than heterosexual persons – indeed, far less power than other minority groups.  The Golden Rule, Kant's Categorical Imperative, and Rawl's Veil of Ignorance (not to be confused with Smart's Cone of Silence!) all challenge us to walk a mile in someone's else's shoes before judging them.  I believe that each of us would find that to have been gay or lesbian in the United States during the 20th century and down to the present day was a very Long Walk indeed.  Does the House of Representatives really believe that gays and lesbians do not need protection from unfriendly legislation enacted during this period - that the government should not be required to demonstrate why they should be treated differently?

2.  Is there a legitimate reason for the government to treat gay and lesbian couples differently?

In light of all of the energy that the House brief puts into denying that gays and lesbians should be considered a "suspect class" it is surprising that its defense of the substance of the law is so cursory.  The House addresses only one of the proffered reasons purporting to justify DOMA – the assertion that opposite-sex couples are better parents than same-sex couples.  And instead of offering proof of this assertion, the House lawyers simply claim that the contrary studies submitted by the plaintiff are not definitive – that the jury is still out on the question whether gays and lesbians are as good parents as heterosexuals.  Here is an excerpt from this two-page portion of the House brief:

 Plaintiff's claim of a clear expert consensus is overstated.  Indeed, the evidence relied upon by plaintiff's own experts demonstrates that studies comparing gay and lesbian parents to heterosexual parents have serious flaws.

That's it, folks.  In this brief the House does not offer any proof whatsoever that opposite-sex couples do a superior job of parenting or even assert that they are better in this regard than same-sex couples.  The House at most argues that existing studies "are not definitive" and suffer from "serious methodological problems."  In other words, the House of Representatives is attempting to justify a law that withholds legal recognition – and substantial legal benefits like tax breaks, health care coverage, and pension benefits – from the families of same-sex couples because there is no evidence that they are any different from any other families!  That is not a winning argument.  It is not even a vigorous defense.

In my long career in the law I have never seen a more timid and half-hearted collection of legal arguments – particularly not in a matter of such importance as this.  Attorneys are supposed to be zealous advocates on behalf of their clients.  That didn't happen here.  When President Obama and Attorney General Holder came to the conclusion that they could no longer in good conscience defend DOMA in court, they withdrew.  Considering the unenthusiastic briefs that they have filed, the House attorneys are facing the same dilemma.  I would be interested in hearing, through the comments below, whether you share the same impression.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

On August 1, 2011, lawyers for the House of Representatives filed briefs in support of the constitutionality of the federal Defense of Marriage Act.  Adam Bink at Prop 8 Trial Tracker has posted both briefs: one is a Response to Interrogatories and the other is a Brief in Opposition to Plaintiff's Motion for Summary Judgment.  In this post I will analyze the House's response to the court's interrogatories.

On February 23, 2011, Attorney General Eric Holder sent a letter to Speaker of the House John Boehner stating that President Barack Obama had determined that the Department of Justice would no longer defend the Federal Defense of Marriage Act in court.  As a consequence, the House of Representatives was invited to hire attorneys to make arguments in support of the law.

Edith Windsor's wife Thea Spyer died in 2009.  Because the federal Defense of Marriage Act does not recognize same-sex marriages as valid, Windsor was required to pay over $350,000 in federal estate taxes that a surviving spouse of an opposite-sex marriage would not have had to pay.   Windsor sued the United States in federal court in the Southern District of New York.   The judge in the Windsor case filed interrogatories asking the federal government two questions:

"What, if anything, do you contend are the compelling justifications for section 3 of DOMA?

“What, if anything, do you assert are the legitimate government interests rationally advanced by section 3 of DOMA?”

These two questions are really one; the judge was asking the House to state the reason or reasons why the federal law refuses to recognize same-sex marriages.  No matter what standard of review the court eventually determines to be applicable to this question, the House must identify at least one rational, legitimate reason for treating same-sex couples differently than opposite-sex couples.  This is a minimum requirement under the Constitution.  The Supreme Court has stated many times that people who are "similarly situated" must be treated alike – only if there are "real differences" between different groups may they be treated differently.  Furthermore, these "real differences," says the court, must be "fairly related to the object of the legislation."  The law may not treat people differently for arbitrary or capricous reasons, nor is it sufficient for the government to simply point out that the group being discriminated against is different in some respect.  The distinguishing factor must be fairly relevant to the benefit or privilege that the government is depriving that group of people of.  In this case, the district court pressed the House to articulate why it wished to treat same-sex couples differently with respect to marriage.

The attorneys for the House of Representatives responded by identifying five reasons that support the constitutionality of the law.  The House claims that the purposes of the law are:

defending and nurturing the institution of marriage by acting with proper caution in the face of the unknown consequences in the face of a novel redefinition of the foundational social institution of marriage;

protecting the public fisc and preserving the balance struck by earlier congresses in allocating federal burdens and benefits;

maintaining consistency in eligibility for federal benefits based on marital status;

defending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage;

and defending and nurturing the institution of marriage by creating legal structures that make it more likely that children will be raised by parents of both sexes.

That's it.  The answers to interrogatories simply repeat the foregoing list in response to both of the judge's questions.  Explanations and support for each of these propositions will appear in the substantive briefs, in particular the other brief filed in opposition to the plaintiff's motion for summary judgment.

In my opinion the House's framework in support of the law is paper thin.  Here is my evaluation of each of the House's asserted interests.

1.  Caution in light of the unknown

It has been 15 years since DOMA was enacted.  The question of same-sex marriage has been the subject of sharp and constant political debate, a large volume of social science research into same-sex families, and protracted litigation including the Prop 8 trial that created a voluminous record of that research.  The House may not interminably assert that it must treat people differently because it cannot be sure that they are not the same.  At some point the House must either prove that families headed by same-sex couples are not as worthy of recognition as families headed by opposite-sex couples or it must concede that it lacks such proof.   The House's first answer to this interrogatory implicitly concedes that it has no evidence demonstrating how same-sex couples are so different as to justify withholding recognition of their state-sanctioned marriages.

2.  Protecting the public fisc

Even more than the first asserted government interest, this argument amounts to a concession of unconstitutionality.  The government can never justify treating a group differently in order to "save money."  The Equal Protection answer to this assertion is Ron Paul-like – "So save even more money by denying recognition and funding to all marriages!"  The government may not "protect the public fisc" by arbitrarily denying some people a benefit.  If money is a problem, then simply reduce the amount of the benefit so that it may be shared by all persons similarly circumstanced.  As for the desire not to upset judgments by earlier congresses, it is unlikely that the courts would award retroactive relief to those persons who do not file suit within the period of limitations, even though same-sex couples paid their taxes just like everybody else but did not qualify for benefits.  There will not be "reparations" in this situation any more than in other civil rights contexts.

3.  Maintaining consistency

The House argues that it is "maintaining consistency" by denying equality to same-sex couples.  Good luck with that argument!  In addition to being inherently contradictory, this simply raises the question of why the federal government wishes to "maintian consistency" – it must still explain to the courts why it has chosen to withhold recognition of same-sex marriages.

4.  Marriage is for begetting and rearing children

This argument raises questions of overbreadth and underbreadth.  More than ten percent of opposite-sex couples are infertile.  A significant portion of these opposite-sex couples use many of the same assisted reproduction techniques that same-sex couples use to conceive children.  (My wife has helped both opposite-sex and same-sex couples to conceive in this way.)  Many more opposite-sex couples choose never to have children.  Opposite-sex couples are not expected to divorce if they do not have children or if their children predecease them.  People past the age of childbearing stay married and enter into marriage.  Their is no law or social custom that prevents all these marriages, and DOMA recognizes all of these marriages so long as the spouses are of the opposite sex.  Finally, one may fairly ask, if marriage is so central and important in the lives of children raised by opposite-sex couples, why is it not just as central and important to the hundreds of thousands of children being raised by same-sex couples in the United States?  DOMA does not directly help a single child, but it does grievously harm many.  Striking it down will make a major difference in the lives of hundreds of thousands of children.

5.  Making it more likely that children will be raised by parents of both sexes

There are two basic problems with this asserted governmental interest.  First, why does the House believe that a child is better off being raised by an opposite-sex couple rather than a same-sex couple?  And second, how does DOMA achieve its goal of making it more likely that children will be raised by opposite-sex couples?

If the government can produce social science research demonstrating that opposite sex couples are better at parenting than same-sex couples then it may win this case.  However, all of the recent social science research on the question demonstrates that there is no significant difference in the parenting abilities of same-sex and opposite-sex couples.

Furthermore, DOMA does not provide a single child with parents of different genders.  It simply withholds important legal benefits from the families of same-sex couples.  Will the House argue that DOMA persuades people to change their sexual orientation?  Or that the law encourages gays and lesbians to enter into opposite-sex relationships and bear children despite their orientation?  The House may have difficulty proving either proposition.

What is most striking to me is that the House has declined to make the single constitutional argument relied upon by Justice Scalia and other conservative justices in support of laws that discriminate on the basis of sexual orientation.  Justice's Scalia's principal argument – his only argument – is that society is justified in discriminating against gays and lesbians even to the point of incarceration because such discrimination is in furtherance of "traditional sexual mores."  In Justice Scalia's opinion, the history of discrimination against gays and lesbians is not something to be ashamed of, but rather serves as legal justification for existing laws that discriminate. 

It is a step forward that the House has chosen not to assert an approach to constitutional interpretation that would enshrine traditional prejudices in the Constitution.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

Attorney General Eric Holder has sent a letter notifying Congress that the administration now believes that Section 3 of the federal Defense of Marriage Act – the law that prohibits the federal government from recognizing same-sex marriages – is unconstitutional.

The letter is entitled Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act and is addressed to John Boehner, Speaker of the House.  Attorney General Holder informs the Speaker that the administration will continue to enforce DOMA and will continue to defend it in federal circuits that have already upheld the law, but will not defend the law in jurisdictions such as the Second Circuit where its constitutionality has not heretofore been tested. 

The administration's position is very simple.  Because the statute discriminates on the basis of sexual orientation, it is subject to "heightened scrutiny," and under that standard no reasonable argument can be made in support of the constitutionality of the law; in other words, no reasonable person could conclude that there is an important reason to deny gays and lesbians the right to marry.  Under the rational basis test a reasonable person could argue that the law is constitutional, and if the courts decide to apply that standard of review then the administration will defend the law.

The administration is actually taking a very nuanced stance.  The administration is not threatening to withdraw from the litigation.  If a district court strikes down the law the administration has not stated that it will refuse to file an appeal, like Governor Schwarzenneger and State Attorney General Brown did in the Prop 8 case.  The administration is simply saying that it will not make arguments defending the law unless the courts find that rational basis is the appropriate standard of review.  The operative paragraph of the letter states:

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

My initial reaction to news reports about this decision was negative.  Under the Constitution the President has the duty to faithfully execute the law, and the President has no power to declare a law unconstitutional.  But this letter demonstrates a very careful and measured response to the situation.  The administration promises to continue to enforce the law and will keep the courthouse doors open to defense of the statute; it will be up to members of Congress or other interested parties to argue on behalf of the constitutionality of the law.  The courts will still have a full and fair opportunity to determine whether the law is constitutional.

Holder's argument against the constitutionality of the law invokes standard Equal Protection doctrine.  "Heightened scrutiny" is appropriate when legislation is directed against a group that is has been historically discriminated against, that lacks the political power to defend itself through the legislative process, and which is discriminated against on account of a trait that is immutable and that is unrelated to the ability to contribute to society or to legitimate governmental objectives.  All four of these indicia of "suspectness" are present in this case, and the law is therefore properly regarded with "suspicion."  Here is the key portion of Holder's letter on this point:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985). 

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.

Applying the standard of review to the facts, the administration doesn't seem to think that there is any legitimate reason to deny gays and lesbians the right to marry; rather, DOMA was enacted purely and solely to express "moral disapproval" of same-sex relationships.  The letter states:

the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.vii See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

This argument – that the law was enacted not for any objective reasons but solely because of prejudice – is inconsistent with the administration's promise to defend the law if the courts find that the rational basis test is the appropriate standard.

Nevertheless, the scope of the Attorney General's letter is limited.  The President and the Attorney General do not assert that there is a constitutional right for gay and lesbian couples to marry – that state laws and state constitutions that deny this right are in violation of the 14th Amendment.  They simply assert that it is unconstitutional for the federal government to deny recognition to same-sex marriages that were entered into under state law.  Their carefully crafted conclusion states:

the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Another aspect of this matter that the Attorney General does not address is state sovereignty – the fact that DOMA represents an intrusion into a matter of traditional state concern, the definition of marriage.  Congress has no power under the Constitution to define who may and who may not marry.  That is up to the states.  It could be argued that under the Spending Clause Congress may choose to subsidize certain marriages and not others, but that simply emphasizes the federalism concerns that attend this Equal Protection claim.  But I suppose it would be anomalous for the chief law enforcement officer of the federal government to concede that this is primarily a matter of state concern.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

     Earlier today the Supreme Court turned down an appeal by persons seeking overturn the District of Columbia laws recognizing same-sex marriage.

     Here is the AP report of the Supreme Court's decision not to hear this case, as published at Yahoo News, and here is Gabriel Arana's take on Supreme Court's action at The American Prospect.

     And here is the decision of the D.C. Circuit Court of Appeals, which heard the case en banc on May 4 of last year and issued its ruling on July 15.  By a vote of 5-4, the Court of Appeals upheld same-sex marriage in the District of Columbia, but this case was not decided on constitutional grounds.  Instead, this case was principally about whether the citizens of the District of Columbia have the right under District laws to mount an initiative on this subject.

     What led to this litigation is that the Home Rule Council for the District of Columbia adopted a law recognizing same-sex marriage.  Bishop Harry Jackson and other citizens sought to bring an initiative pursuant to which the voters of the District could decide whether to repeal the new law.  The District of Columbia Board of Elections and Ethics ruled that the repeal measure could not appear on the ballot because the Council had previously adopted legislation providing that voter initiatives may not violate the District's Human Rights Act, a law that prohibits discrimination on the basis of sexual orientation.  Bishop Jackson and others filed this lawsuit against the Board of Elections contending that they had a legal right to bring this matter before the people for a popular vote on the question.

     In the course of its 53-page opinion, the majority of the Court of Appeals exhaustively reviews the Human Rights Act, the Home Rule Act, the Charter Amendment Act, the Initiative Procedures Act, the Jury and Marriage Amendment Act, and the Marriage Equality Act.  Each of these laws is briefly summarized below.

     The Human Rights Law was initially adopted by the pre-home rule D.C. Council in 1973 and approved by Congress.  According to the Court of Appeals, the Human Rights Law

declared that “[e]very individual shall have an equal opportunity to participate . . . in all aspects of life,” and it announced an intent “to secure an end . . . to discrimination for any reason other than that of individual merit, including, but not limited to discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.”

     After the District of Columbia was granted Home Rule, in 1977 the D.C. Council reenacted the Human Rights Law as the Human Rights Act.

     The Home Rule Act is a federal statute adopted by Congress in 1973 setting forth the Charter for the District of Columbia.  It contained no specific provision allowing voter initiatives, but instead vested power in the D.C. Council to adopt laws that would share the District's legislative power with the people.

     The Charter Amendment Act is a law adopted by the District Council in 1978 permitting ballot initiatives.  However, the CAA was not self-executing and would not go into effect until the D.C. Council adopted laws implementing it.

     The Initiative Procedures Act, adopted by the Council in 1979, sets for the procedures to be following for amending the Charter by means of ballot initiatives.  This law contains a provision prohibiting a charter amendment from appearing on the ballot if it 

authorizes, or would have the effect of authorizing, discrimination prohibited under [the Human Rights Act].

The Court of Appeals refers to this provision of the Initiative Procedures Act as the "Human Rights Act safeguard."  

     The Jury and Marriage Amendment Act (JAMA) and the Marriage Equality Act became effective in 2009 and 2010 respectively.  These two laws, adopted by the District Council and not dissapproved by Congress, recognize the validity of same-sex marriages performed in other states and authorize same-sex marriage in the District of Columbia.

     Bishop Jackson and others proposed a ballot initiative that, if adopted, would have repealed JAMA and the Marriage Equality Act.  The District's Board of Elections and Ethics rejected the proposed initiative on the ground that the measure constituted an attempt to authorize discrimination that is prohibited under the Human Rights Act in violation of the Human Rights Act safeguard contained in the Initiative Procedures Act.  The trial court ruled in favor of the District of Columbia and against Bishop Jackson, and the Court of Appeals affirmed.

     The majority of the Court of Appeals upheld the "Human Rights safeguard" in the Initiative Procedures Act.  The four dissenting judges would have found that the "Human Rights Act safeguard" of the Initiative Procedure Act was not a valid limitation on the right of initiative – that the D.C. Council was not authorized by the Home Rule Act or the Charter Amendment Act to place "subject matter" restrictions such as the Human Rights Act safeguard on the initiative process.

     However, all nine justices on the Court of Appeals agreed that the proposed ballot initiative would have permitted discrimination on the basis of sexual orientation, and that such discrimination is prohibited by the District's Human Rights Act.  The dissenters said:

This court must decide … whether the IPA’s “Human Rights Act limitation” is a valid restriction on the right of initiative. For the reasons which follow, we would hold that it is not.

Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative. In light of the majority’s holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majority’s conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002.

     Again, this case was not decided on constitutional grounds, but rather upon an interpretation of the statutory limitations on the intiative process in the District of Columbia.  Nevertheless, the final portion of the majority opinion (beginning on page 45) finding that repealing the Marriage Equality Act would constitute discrimination on the basis of sexual orientation and the concurrence of all of the the dissenting judges on this point represents a significant victory for the gay rights movement – a victory that is secured by the decision of the Supreme Court not to review the case.

     At a press conference yesterday, Senatory Joe Lieberman (I-CT) indicated that there are 60 votes in the Senate to repeal Don't Ask, Don't Tell, the federal law that bars gays and lesbians from serving openly in the military.  There are also preliminary reports indicating that the military study due December 1 will recommend repeal.

     Just as the federal courts are finding DADT to be unconstitutional (Federal Judge Strikes Down DADT Worldwide), it appears that Congress will soon repeal it.  Here are a collection of news stories about Lieberman's press conference and the prospects for repeal of DADT:

Chris Johnson, Washington Blade, Lieberman Confident About 60 Votes for Repeal.  Johnson reports that Lieberman says he has assurances from Susan Collins (R-ME), Richard Lugar (R-IN), and "others privately" to vote for repeal.  Richard Burris (D-IL), however, may step down before the vote is taken.

Kerry Eleveld, The Advocate, Lieberman on DADT: We Have 60.  Eleveld reports on how there must be negotiations regarding how much time the Senate will have for debate and how many amendments may be offered.  Eleveld also states that "Preliminary reports about the [Defense Department] study suggest that it concludes repeal poses “minimal risk” even during a time of war."

J. Taylor Rushing, The Hill, Senate Dems Claim Enough Votes  to Repeal Don't Ask, Don't Tell Policy.  Rushing reports that Senator John McCain (R-AZ) intends to filibuster the repeal bill, and that he is not satisfied with the Pentagon study: "He [McCain] maintained that he has problems with the Defense Department study, which he said wasn't a survey, but rather a study about how to implement a policy reversal. And, he said only 28 percent of military personnel responded."

Chris Johnson of the Washington Blade posted another article, Sen. Ensign to Support 'Don't Ask, Don't Tell' Repeal: Source.  Johnson reports: " Laura Martin, communications director for the [Stonewall Democratic Club of Southern Nevada], said she and other activists on Thursday met with Margot Allen, Ensign’s regional representative on military issues, who informed the group of Ensign’s opposition to “Don’t Ask, Don’t Tell” and intention to vote for the fiscal year 2011 defense authorization bill, which contains repeal language."

     The federal law known as "Don't Ask, Don't Tell" prohibits gay and lesbian servicemembers from being open about their sexual orientation.  In particular, the law prohibits gays and lesbians who are married to someone of the same sex from serving in the military.  Repeal of DADT will remove that impediment.  However, the repeal legislation expressly leaves the Defense of Marriage Act (DOMA) in place.  Under DOMA, the federal government does not recognize the validity of same-sex marriages.  DOMA applies to all Americans, not just members of the military service; it prohibits, for example, same-sex couples from filing joint tax returns with the I.R.S. or from qualifying for benefits as a surviving spouse under Social Security.  However, DOMA takes on special poignancy for military families.  Same-sex spouses do not qualify for benefits such as military housing, and when a married gay or lesbian servicemember is killed federal law would not consider that person's husband or wife to be even a family member, let alone the next of kin.

     We have faced a similar problem before.  During the Civil War over 130,000 escaped slaves joined the United States Army and Navy.  When they were killed in battle or later died, their widows were entitled to pensions, but a problem arose in that their marriages had not been lawfully recognized by southern states.  The following excerpt from Anthony E. Kaye, Joining Places: Slave Neighborhoods in the Old South (Google Books 2007), page 14, explains how this problem was addressed:

Evolving qualifications for pensions generated extensive testimony about slavery.  Widows claims were the most revealing.  Because slave marriages were not recognized by law, freedwomen could not produce marriage licenses to establish their bona fides as soldiers' wives.  The bureau made it standard procedure for "special examiners" to collect oral testimony in freedwomen's claims.

See also an NPR interview with Tera Hunter, Slave Marriages: Families Were Often Shattered by the Auction Block, in which Hunter states:

African American widows who applied for pensions had to show how they were married before the War, which meant they needed the testimony of people who knew them as couples, including former masters and fellow slaves. … All of the testimony that the original pensions and the investigations generated provide a treasure trove of revelations about black marriages stretching from slavery through the end of the 19th century and beyond.

     See also Florida History Online: Introduction to Pension Page:

The editors of this web page encourage viewers to pay careful attention to the applications for widow’s pensions submitted by black women who married the soldiers and lived longer lives than their husbands. Some contain information concerning women’s lives during slavery, especially the tenuous and precarious nature of slave marriages.

     For more information generally on the struggle to equalize pay and benefits of black Civil War soldiers, see Dudley Taylor Cornish, The Sable Arm: Negro Troops in the Union Army, 1861-1865 (1956, 1966), at pages 184-196.

     Military service has traditionally been the path to citizenship and equal rights.  In my opinion, the repeal of DADT will inevitably lead to the demise of DOMA at the hands of both the judicial (Federal Judge Rules DOMA Unconstitutional) and the legislative branch.

In my Law and Theology seminar, the students (and I) are authoring a course blog. My latest entry is about a recent decision in the 7th Circuit on the funding of student worship and proselytizing activities by the University of Wisconsin. Check it out here.

     The House voted 234-194 and the Senate Armed Service Committee voted 16-12 to repeal Don't Ask, Don't Tell if a military study concludes that allowing gays and lesbians to serve openly in the military will not harm the effectiveness of the armed services.

     Donny Shaw of Open Congress has an informative post "Don't Ask, Don't Tell Repeal Moving Quickly in Congress" describing this week's votes on the conditional repeal, and Rachel Slajda of Talking Points Memo has provides background information in her article "Rep. Murphy On DADT: 'We Need To Act With A Sense Of Urgency Here'."  Twenty-six Democrats voted against the measure in the House and five Republicans voted for it.  The only members of the Senate Armed Services Committee to cross party lines on the issue were Jim Webb (D-VA), who voted against the proposal, and Susan Collins (R-ME) who voted for it.

     Slajda reports that Senator John McCain (R-AZ) is threatening to filibuster the measure.

     In his masterful book Abraham Lincoln and the Second American Revolution James M. McPherson draws the distinction between "negative liberty" and "positive liberty."  Negative liberty is the right to be free from laws regulating our conduct.  Positive liberty is the enactment of laws protecting our rights.  Libertarians in general and Republican senatorial nominee Rand Paul in particular are quite properly devoted to the concept of individual liberty.  However, in opposing laws such as the Civil Rights Act of 1964, the Fair Housing Act, and the Americans with Disabilities Act their understanding of what liberty truly entails is cramped.  They value negative liberty but overlook positive liberty.

     In the most recent posting on this subject I repeated Abraham Lincoln's story of the sheep and the wolf: the wolf's definition of liberty is freedom to attack the sheep, while the sheep's definition of liberty is the shepherd's protection from the wolf.  This fable reflects the point that Locke, Rousseau, and Hobbes all agree on in their understanding of the social contract; that in a state of nature the strong prey upon the weak, and that people enter into society and submit to the rule of law to obtain protection from predators.  Through cooperation we seek not only protection but knowledge and prosperity, the full flowering of human potential.  Liberty is not the freedom to exploit others.  It is the opportunity to enjoy life to the fullest, to become whatever we choose to become; to gain knowledge and wisdom, to love whom we choose, to enjoy nature, to build, and to acquire.  To the extent that other people have the legal right to prevent us from achieving those goals we are not free.

     A society where one person or a small group of people or even the majority of people can make it impossible for others to reach their full potential is not a free society.  It may be free from governmental oppression, but it is not free from oppression.  When a farmer or manufacturer has the right to pollute the air or contaminate the water it invades the rights of everybody else to good health and to the enjoyment of the earth.  When a mining company has the right to employ children or ignore safety standards or to pay less than a living wage it makes it impossible for other people to reach adulthood or protect life and limb or support themselves and their families.  And when restaurants, hotels, gas stations, department stores, banks, and other businesses have the right not to serve you or not to employ you because of your race, religion, gender, or sexual orientation you are not a full and equal member of society; you are instead a second-class citizen.  Liberty is not simply freedom from law; it is freedom from all forms of exploitation.

     As McPherson points out, this change from "negative liberty" to "positive liberty" is embodied in the text of the Constitution.  Before the Civil War all of our rights were "negative rights" in the sense that the Constitution provided that government lacks the power to invade our freedom; freedom of speech, freedom of religion, the right to due process with all of the attendant rights (the right to an attorney, the right to silence, the right to a speedy and public trial) all describe what the government may not do to us.  The Constitution declares that the government may not prevent us from speaking or associating, close our churches or establish an official religion, or imprison us without affording us a proceeding that has all the attributes of a fair trial.

     But the original Constitution was flawed, deeply flawed.  It recognized and protected slavery and thus held a snake to its heart.  The Constitution celebrated liberty but did not even mention equality.  The fundamental principle of the Declaration of Independence that "all men are created equal" was left out of the Constitution of 1787 because people in South Carolina and Georgia and other several other states were not willing to give up what they regarded as their liberty to enslave others. 

     After the Civil War the American people adopted a number of Amendments to the Constitution that are designed to allow the government to protect the rights of individual citizens.  Section 1 of the Thirteenth Amendment states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 1 of the Fourtheenth Amendment states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1 of the Fiftheenth Amendment states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

     Each of these Amendments confers positive rights.  Nor is that all.  Each of these amendments also confers powers upon Congress to enforce these rights through the enactment of positive law.  In nearly identical language the "Enforcement Clauses" of each of the Civil War Amendments provide:

Congress shall have power to enforce this article by appropriate legislation.

    After the Civil War the American people elected to grant their government the power to protect our liberties.  The Supreme Court has held that the other powers of Congress (such as the power to regulate commerce and the power to tax and spend) may be exercised for the same purpose.  The Civil Rights Act of 1964, the Fair Housing Act of 1968, and the Americans with Disabilities Act are all constitutional enactments of positive law protecting our liberties.  It is a shame that people like Rand Paul who are so passionate about liberty refuse to acknowledge that individuals and private corporations do not have a God-given right to harm others.

     In a number of recent interviews Kentucky Republican senatorial candidate Rand Paul has made it clear that he is opposed to laws that prohibit private businesses from discriminating on the basis of race.  He believes that individuals and privately-owned businesses should have a legal right to discriminate.

     From his interview on the Rachel Maddow Show last night it appears that Doctor Rand Paul, who won the Republican nomination for U.S. Senate from Kentucky, would not have voted in favor of Title II and Title VII of the Civil Rights Act of 1964.  Maddow initially played clips from Paul's interviews on "All Things Considered" and the editorial board of the Louisville Courier-Journal in which Paul indicated that he supports only those portions of the Civil Rights law that regulate the government and private entities that receive public funding.  Maddow gave Paul many opportunities to say that he would support the provisions of the law regulating private businesses, but Paul insisted that he would support only those portions of the law that abolish "institutional racism," by which he means actions by the government.

     Paul claims that the principal purpose of the Civil Rights Act of 1964 was to eradicate official acts of racism; that it was primarily directed at government agencies, not private businesses.  In this he is mistaken.  Dr. Paul needs to reread this period of American history, and he would be reminded that the Supreme Court had struck down state-sponsored discrimination a decade earlier in Brown v. Board of Education (1954); governmental discrimation was already unlawful in 1964.  Dr. Paul would recall that it was private acts racism that fueled the freedom rides and lunch counter protests in the early 1960s.  Dr. Paul should listen to John F. Kennedy's inspiring speech of June 11, 1963, in which the President denounced employment discrimination and discrimination by businesses open to the public and in which he announced that he would introduce the civil rights law in Congress.  (This speech may be downloaded from this page maintained by the J.F.K. Library).  Dr. Paul would then remember that it was discrimination by private businesses – stores, hotels, restaurants, banks, theaters, and private bus lines – that was the principal focus of the Civil Rights Act of 1964.  

     Title II of the 1964 Civil Rights Act requires businesses that are open to the public to serve blacks on the same basis as whites, without discrimination or segregation, and Title VII prohibits acts of employment discrimination in all businesses, even those that are not open to the public.  Title II and Title VII are essential building blocks of our society.  These laws prohibit not only discrimination on the basis of race, but also discrimination on the basis of religion, gender, and disability.  They guarantee equal treatment and equal opportunity for all of us.  Why would we choose to undermine such a significant foundation of American life?

     Dr. Paul is not a racist.  He is a libertarian.  He is opposed to civil rights laws not because he believes in white supremacy but because he is dedicated to the principle of small government.  For example, on  a page of his website discussing campaign finance reform he states:

The only answer to that problem [lobbyists and corruption] is for Congress to reduce severely the size and scope of the federal government, so that the market is allowed to operate according to the free forces of a laissez-faire economy.

     Paul explicitly embraces the ideal of "laissez faire" economics.  In line with this philosophy he believes that the owner of a private business should have a legal right to discriminate on the basis of race.

     The Supreme Court, in an opinion authored by Justice Tom Clark, unanimously voted to uphold the constitutionality of Title II in 1964 in the case of Heart of Atlanta Motel v. United States.  Most of Justice Clark's opinion discusses Congress' power to enact this law under the Commerce Clause, but it also addresses the motel's contention that, as a private business, it had a constitutional right to deny service to customers on the basis of race.   The opinion states:

Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself. The only questions are: (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate.  If they are, appellant has no "right" to select its guests as it sees fit, free from governmental regulation.

     Justice Clark noted that 32 states had enacted similar laws, and that the Supreme Court had repeatedly upheld those laws.  Clark also cited language in the Civil Rights Cases (1883) indicating that nondiscrimination was the rule at common law.  Finally, he found that the motel's claims that the civil rights law represents a "taking" of private property and that it imposes a burden of "involuntary servitude" upon the motel were without merit.

     Dr. Paul's views are not in the mainstream of American political thought.  No-one who believes that private businesses should have the right to discriminate on the basis of race should hold public office in this country, whatever his or her justification for taking that position.  Our leaders must be fully committed to enacting and enforcing the civil rights laws.

     Last night President Obama issued a statement requesting the Secretary of Health and Human Services to promulgate rules ordering hospitals to grant equal visitation rights to the partners and children of gay and lesbian patients.

     Charles Babington of the Associated Press reports that on Thursday the President issued a memorandum to the Secretary of Health and Human Services.  The Presidential Memorandum first lays out what the problem is:

There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean — a loved one to be there for us, as we would be there for them.

Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides — whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.

     The President then requests the Secretary of Health and Human Services to take action:

By this memorandum, I request that you take the following steps:

1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient's care or treatment.

2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.

3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.

     In a statement issued yesterday, the Human Rights Campaign asserts that the President's action was inspired by the case of Lisa Pond and Janice Langbehn, who were kept apart by workers at Jackson Memorial Hospital in Miami, Florida, last year while Lisa was dying, even though Lisa had completed advanced directives identifying Janice as her medical decisionmaker and requesting her presence.  That tragic event was described by Tara Parker-Pope in a story published in the New York Times on May 18, 2009.  Janice and Lisa's children then sued the hospital with the help of Lamda Legal.  According to a posting at Lamda Legal, the federal district court dismissed the lawsuit on the ground that the law does not require hospitals to allow patients any visitors, but the hospital agreed to revise its procedures to allow visitation for gay and lesbian families on an equal basis with other families.

    The President's action will extend that protection nationwide.

Well, I got involved in a little brou-ha-ha over on Bob Dyer's column, and I thought I would bring it up over here. The issue is that the sports teams for Akron's East High School have traditionally been called "the Orientals." Born and raised in California, I have always considered that term somewhat offensive, so when Dyer originally posted a short item about this in one of his columns, I emailed him an extensive response. Here's the original item:

Time for change

How long is Akron's East High School going to insist on keeping that absurd nickname for its sports teams?

In 2010, it's unconscionable that we're still saddled with ''the East High Orientals.''

Tradition is nice, but it doesn't trump good taste. Can you imagine the existence of a team called the West High Negroes?

The term ''Oriental,'' when referring to a person, is every bit as offensive to most Americans of Asian heritage.

His follow-up published today devotes an entire article to this topic, and quotes me extensively.

What do you think?

     The violent threats and rhetoric in reaction to the enactment of the health care reform bill are nothing new.  It is a familiar response by those who think they ought to have their way no matter the results of elections or votes in Congress.  It is, at bottom, a rejection of democracy.  Over time, however, Americans have grown proud of their democratic institutions and weary of vigilantism.  A short history below. 

1.  Before the American Revolution, and in many places throughout the south up to the late 19th century, elections were little more than organized brawls.  Crowds of partisans would storm election halls and physically prevent other voters from entering or beat them for daring  to oppose the mob.  There was no secret ballot.  The "Australian system" of anonymous voting in private polling booths was not widely adopted until the 1880s.  In the election of 1860, Lincoln received no votes in ten southern states.

2.  Slavery was legal before 1865, but it was possible on a widespread basis only if slaveholders and whites in general maintained a hypervigilance, not only against revolt, but for sign of "uppitiness."  A muttered word by a slave, a disrespectful shrug, a direct stare, a turning of the back – these all might signal a will to resist and it was imperative to stamp it out, particularly in states like Mississippi and South Carolina where blacks formed the majority of the population.  The institution of slavery was propped up by a police state, a militia, and vigilanteism.  Civilian knowledge of the use of arms and a willingness to resort to violence were necessary to maintain the institution of slavery. 

3.  Secession and Civil War were triggered by the fact that the south had lost the power over the federal government.  The south lost control of the House of Representatives in the decades before the Civil War.  Despite the three-fifths clause giving the southern states extra representatives for the slaves they held, the population of the north and west surged thanks in part to immigration from Europe while that of the south stagnated due primarily to slavery.  Who would immigrate to a place where it was necessary to compete against slave labor?  The south lost the Presidency in 1860 because northern Democrats nominated Stephen Douglas, a man who believed in allowing each new state to decide for itself whether to enter the union as a slave or a free state.  Douglas was hardly the apostle of democracy – he would not allow blacks any voice in the matter - but even allowing whites to vote on the extension of slavery was too much for the southern states, who nominated their own candidate for President, thus splitting the Democratic vote and throwing the election to Lincoln.  The southern states seceded, and many of their representatives left Congress.  The moment they walked out, Kansas was admitted as a free state, thus giving the free states of the north and west the balance of power in the Senate.  Without the House, the Senate, or the Presidency, and with little hope of regaining any of them in support of the extension of slavery, the south attempted to leave the Union.

4.  Over 600,000 American soldiers died in the Civil War, almost as many as have perished in all our other wars combined. 

5.  In 1865 the country adopted the 13th Amendment abolishing slavery.

6.  Immediately following the Civil War the southern states enacted the Black Codes, which were intended to return blacks to a state of virtual slavery.  Congress responded by enacting the Civil Rights Act of 1866 granting blacks citizenship and civil rights, and the 14th Amendment, which prohibits the states from abridging the rights of citizenship, depriving people of due process, and denying any person the equal protection of the laws.

7.  Blacks won the right to vote in 1870 with the passage of the 15th Amendment, but the Ku Klux Klan arose under the leadership of Nathan Bedford Forrest, who apparently did not get Lee's message for his soldiers to renounce violence and become loyal citizens of the United States. Congress reacted to the privately-organized violence by enacting laws like the Ku Klux Klan Act of 1871, and President Grant tried to enforce it during Reconstruction.   However, following the election of 1872 there was widespread violence by whites who were furious that blacks had won political office.  One such event was the Colfax Massacre, where a mob of Louisiana whites slaughtered more than 100 blacks who dared to claim control of the county government following an election.

8.  Reconstruction failed because whites who believed in the democratic process wearied of the fight, and the Supreme Court refused to protect the constitutional rights of blacks.  The perpetrators of the Colfax Massacre were released by the decision of the Supreme Court in United States v. Cruikshank (1875).  In  Cruikshank the Supreme Court decided that it was up to the states, not the federal government, to protect blacks against acts of private violence.  The "state action" doctrine also doomed the enforcement of other federal civil rights laws, and in a series of cases over the next 50 years the Supreme Court struck down those laws and upheld state sponsored segregation.  The worst case from this era, in my opinion, was not Plessy v. Ferguson (1896), but Williams v. Mississippi (1898), where the Supreme Court upheld the "Mississippi plan," a scheme that was expressly designed to deprive blacks of the right to vote, replete with various devices such as "election managers" who would screen out black voters and allow white ones.  The "Mississippi Plan" was widely copied throughout the south.  As late as 1960, less than 20% of blacks were registered to vote – less than 2% in Mississippi.

9.  Nor did the level of private violence recede.  According to the Tuskegee Institute, 4,730 persons (including 3,437 blacks) were lynched in the United States between 1882 and 1951, mainly in the south.

10.  Over 40 names appear on the Civil Rights Memorial in Montgomery, Alabama, of persons killed in the Civil Rights Movement between 1955 and 1968.  People my age remember these heros.  Here are a few of them.

  Emmit Till, a fourteen year old boy, who was beaten, blinded, and shot by whites in Money, Mississippi, on August 28, 1955, for whistling at a white woman.

    Medgar Evers, Field Organizer for the NAACP, shot and killed outside his home in Jackson, Mississippi, on June 12, 1963.

     Addie Mae Collins (14), Carole Robertson (14), Cynthia Wesley (14), and Denise McNair (11), killed in the bombing of the 16th Street Baptist Church in Birmingham, Alabama, on September 15, 1963.  The church was targeted because it was a meeting place for leaders such as Martin Luther King, Jr., who sought to register blacks to vote.

      James Chaney, Michael Schwermer, and Andrew Goodman, civil rights workers who were killed by a deputy sheriff and other members of the KKK in Philadelphia, Mississippi, on June 21, 1964.

     James Reeb, a Unitarian minister clubbed to death by a white mob in Selma, Alabama, on March 9, 1965.

Viola Liuzzo, Detroit housewife, mother of five children, and civil rights worker, shot and killed by whites  in Montgomery, Alabama, March 25, 1965.

    Martin Luther King, Jr., leaderof the Montgomery Bus Boycott, 1955; Founder and President, Southern Christian Leadership Conference; 1957; organized Birmingham demonstrations and wrote Letter from a Birmingham Jail, 1963; led March on Washington and delivered "I Have a Dream" speech, 1963; won the Nobel Peace Prize, 1964

Assassinated, April 4, 1968, at the age of 39.

     Do the people who shout "Nigger!" at John Lewis and Jim Clyburne  – who throw rocks through windows and leave threatening phone messages – who spit and call out "Faggot!" to Barney Franks - who sputter about states rights and speak darkly about seccession – who hold up signs like the one saying that "If Brown won't work, maybe a Browning will" – do they really think that they can intimidate a generation of men and women who stood up to the Klan and who prevailed against the police state represented by Bull Conner and his dogs and Lester Maddox and his ax handle? 

     We have a message of our own.  Democracy is here to stay.  Get used to it.

in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?

The fundamental premise of the Court's decision in Citizens United v. FEC is that a corporation should have the same First Amendment rights to engage in political speech as any citizen, because a corporation is simply an "association of citizens" in the "corporate form." I think this is going to lead to the politicization of everyday economic life.

The Court's reasoning that corporate speech is simply the collective speech of individual citizens does ring true for certain non-profit, ideologically-oriented corporations, especially when they are membership-driven. When the NRA or the Sierra Club takes members' dues and uses that money to speak on political issues, they in a rough way are simply amplifying the voices of their members, even if an individual member disagrees with one policy or another advocated by the group. That person can always quit.

BUT I don't think that most stockholders in for-profit corporations think that those corporations represent the stockholders' political views. We expect that corporation to be an economic actor, to be interested in making money, and to be generally agnostic with regard to political matters. They are the subjects of government regulation, not the makers of government regulation. Yes, we understand that our bank probably has a lobbyist that advocates a position with regard to banking regulation, but they aren't representing us in any but the most attenuated way. I suppose there's a sense in which we expect the bank to favor regulation that allows them to make money in the long run, but that could lead them to either support or oppose any particular proposal, depending on their political ideology, and I doubt that many people choose their bank based on its political ideology and attitude towards regulation.

So we tend to think of our market decisions and our political advocacy in different ways. We buy the best or the cheapest pizza without regard to whether the founder of the company and its top executives ardently oppose abortion.  We buy stocks of promising corporations without regard to whether its board of directors believes that global warming is a hoax.

This is of course a false barrier, and always has been. And it has already been breaking down. Recently several companies resigned from the Chamber of Commerce because of its strong political stance in opposition to legislation aimed at climate change. In the last election cycle there were websites rating companies as "blue' or "red" based on the proportion of employee contributions given to one party or the other. Readers were encouraged to support those companies that reflected the readers' political allegiances.

SO NOW the Supreme Court has exposed the connection between our political and economic commitments, and cognitive dissonance is no longer sustainable. The Court is telling us that Wal-Mart's speech is our speech when it works to oppose fair pay rules. That the Teamsters' speech is our speech when it opposes trade agreements. That Citibank speaks for us when it fights against banking regulation.

I don't see how I can now avoid making political calculations with regard to my investments and purchases. No, I won't be able to be pure in my judgments, and yes my decisions surely will be incomplete and inconsistent.  But the Court's decision challenges those who disagree with certain aspects of free market ideology to step out of it. It tells us that our corporate associations are not only economic but political. It's on.

     Here are some extended quotes from Dr. King's "Letter from a Birmingham Jail," links to several other of Dr. King's greatest speeches, and a link to President Barack Obama's speech yesterday in remembrance of Dr. King.

     On April 16, 1963, King released his "Letter from a Birmingham Jail."  First, King explains why he has come to Alabama, and why he should not be considered an "outsider:"

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

     Next, King explains his philosophy of non-violent civil disobedience and expresses his determination to implement that philosophy in the City of Birmingham. 

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants–for example, to remove the stores' humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer.

You may well ask: "Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"–then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

     King expanded upon his understanding of the difference between just and unjust laws:

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.

     King then expressed two disappointments – disappointment with white moderates and disappointment with the church.  To the moderates, he said:

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God consciousness and never ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

     And to the southern churches, he said:

…  I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

     King closed with these words:

Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

     The website writespirit.net has stored a number of Dr. King's other speeches, including the Nobel Prize Acceptance Speech, I Have A Dream, Where Do We Go From Here, Loving Your Enemies, Our God Is Marching On, Lincoln Memorial Address, and Beyond Vietnam. 

     Yesterday, in a speech at Vermont Avenue Baptist Church in Washington, D.C., President Barack Obama recalled that as a 27-year-old preacher, Dr. King had delivered a sermon at that same church on December 6, 1956, entitled "The Challenge of a New Age."   The President said:

On Thursday, December 6, 1956. And before Dr. King had pointed us to the mountaintop, before he told us about his dream in front of the Lincoln Memorial, King came here, as a 27-year-old preacher, to speak on what he called "The Challenge of a New Age." "The Challenge of a New Age." It was a period of triumph, but also uncertainty, for Dr. King and his followers — because just weeks earlier, the Supreme Court had ordered the desegregation of Montgomery's buses, a hard-wrought, hard-fought victory that would put an end to the 381-day historic boycott down in Montgomery, Alabama.

And yet, as Dr. King rose to take that pulpit, the future still seemed daunting. It wasn't clear what would come next for the movement that Dr. King led. It wasn't clear how we were going to reach the Promised Land. Because segregation was still rife; lynchings still a fact. Yes, the Supreme Court had ruled not only on the Montgomery buses, but also on Brown v. Board of Education. And yet that ruling was defied throughout the South — by schools and by states; they ignored it with impunity. And here in the nation's capital, the federal government had yet to fully align itself with the laws on its books and the ideals of its founding.

So it's not hard for us, then, to imagine that moment. We can imagine folks coming to this church, happy about the boycott being over. We can also imagine them, though, coming here concerned about their future, sometimes second-guessing strategy, maybe fighting off some creeping doubts, perhaps despairing about whether the movement in which they had placed so many of their hopes — a movement in which they believed so deeply — could actually deliver on its promise.

So here we are, more than half a century later, once again facing the challenges of a new age. Here we are, once more marching toward an unknown future, what I call the Joshua generation to their Moses generation — the great inheritors of progress paid for with sweat and blood, and sometimes life itself.

     The President referred to the leaders and participants of the civil rights movement as "the Moses generation" and to the people of the present-day as "the Joshua generation," and compared the challenges we face to the challenges of that time:

Unemployment is at its highest level in more than a quarter of a century. Nowhere is it higher than the African American community. Poverty is on the rise. Home ownership is slipping. Beyond our shores, our sons and daughters are fighting two wars. Closer to home, our Haitian brothers and sisters are in desperate need. Bruised, battered, many people are legitimately feeling doubt, even despair, about the future. Like those who came to this church on that Thursday in 1956, folks are wondering, where do we go from here?

I understand those feelings. I understand the frustration and sometimes anger that so many folks feel as they struggle to stay afloat. I get letters from folks around the country every day; I read 10 a night out of the 40,000 that we receive. And there are stories of hardship and desperation, in some cases, pleading for help: I need a job. I'm about to lose my home. I don't have health care — it's about to cause my family to be bankrupt. Sometimes you get letters from children: My mama or my daddy have lost their jobs, is there something you can do to help? Ten letters like that a day we read.

So, yes, we're passing through a hard winter. It's the hardest in some time. But let's always remember that, as a people, the American people, we've weathered some hard winters before. This country was founded during some harsh winters. The fishermen, the laborers, the craftsmen who made camp at Valley Forge — they weathered a hard winter. The slaves and the freedmen who rode an underground railroad, seeking the light of justice under the cover of night — they weathered a hard winter. The seamstress whose feet were tired, the pastor whose voice echoes through the ages — they weathered some hard winters. It was for them, as it is for us, difficult, in the dead of winter, to sometimes see spring coming. They, too, sometimes felt their hopes deflate. And yet, each season, the frost melts, the cold recedes, the sun reappears. So it was for earlier generations and so it will be for us.

What we need to do is to just ask what lessons we can learn from those earlier generations about how they sustained themselves during those hard winters, how they persevered and prevailed. Let us in this Joshua generation learn how that Moses generation overcame.

     Dr. King was an extraordinary man, an American hero.  One of the most remarkable facts about his life, and perhaps the most difficult to accept, is that he was taken from us at the age of only 39.  Had he lived he would be only 82 years old today.  How different would our country be – how different would we be – if we had had the advantage of his guidance and leadership for the past 42 years?

     In this final installment on this pending case I discuss whether or not a religious organization like CLS has a constitutional right to discriminate that is superior to the rights that other advocacy groups might have.

     In five previous posts I have introduced the pending Supreme Court case of Christian Legal Society v. Martinez, laid out the breadth of constitutional issues that are implicated, and discussed CLS's First Amendent claims under the doctrines of equal access to a public forum, expressive association, and the free exercise of religion.  In this sixth post I suggest that CLS may try to argue that, as a religious organization, the discrimination that it practices against gays, lesbians, and people of other faiths is on a higher plane and should receive more constitutional protection than discrimination by other, non-religious organizations.

    The problem that CLS faces is that Hastings Law School has a legitimate and compelling reason not to recognize student organizations that discriminate on the basis of race, religion, gender, national origin, disability, and sexual orientation.  The law school is attempting to instill in its students principles of inclusiveness and tolerance – and the law school has that right under the First Amendment.  For example, no court would ever require the law school to confer official recognition a group that wished to call itself the "Hastings Law School Chapter of the KKK," for example, nor would the law school be required to give such a group access to student activity fee funding for a cross-burning.

     The obvious strategy would be for CLS to persuade the Court that the kind of discrimination that is practiced by religious organizations can be distinguished from the kind of discrimination that hate groups like the KKK or the Nazi Party engage in.  And at first blush that would seem easy to do.  We certainly do not regard our churches or religious societies in the same moral light as hate groups. 

     In support of this distinction the CLS can point to the fact that the law routinely exempts religious organizations from the operation of the civil rights laws.  If this were not the case, it would be unlawful for religious institutions to engage in gender discrimination, and churches, synagogues, and mosques could be compelled to employ women as clergy.  This exemption exists for very good reason – the civil rights laws are in some instances in conflict with religious doctrine, and to enforce these laws against religious institutions would infringe upon those institutions' right to the free exercise of religion.  Moreover, in the process of enforcing laws against employment discrimination the government would almost certainly become "excessively entangled" in the affairs of the religious body, thus violating the principle of separation of church and state that the Establishment Clause stands for.

     On closer inspection, however, there are difficulties with this argument.  While it is true that religious institutions enjoy immunity from civil rights laws that prohibit discrimination, so, too, do social, fraternal, and advocacy groups, insofar as those laws would interfere with the organization's rights to expressive association.  The law may not require the Lutheran church to employ a Methodist pastor any more than it may require the Democratic Party to allow Republicans to vote in its primary elections (California Democratic Party v. Jones (2000)), or require the Boy Scouts to employ a gay man as a Scoutmaster (Boy Scouts of America v. Dale (2000)).  Even the KKK has the right, under teh First Amendment, to exclude people of color from becoming members.  Religious institutions exercising the right to freedom of religion in their discriminatory practices are treated no differently than secular organizations asserting their right to freedom of speech.

     Furthermore, there are organizations that function both as religions and as hate groups.  Christian Identity, for example, is a church instituted upon principles of racism and anti-semitism that according to the Anti-Defamation League has penetrated many right-wing extremist movements in America.  Terrorist organizations such as al-Qaeda obviously draw inspiration from religious fanaticism.  And, until 1978, the Mormon church discriminated on the basis of race.  In my opinion there is no principled basis for distinguishing religiously-based acts of discrimination from those that arise from secular motives.

     If CLS raises this line of argument, and if the Court chooses to discuss it, it will be fascinating to witness.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     The difficulty of this case stems from the number of constitutional doctrines and principles which are intertwined, a tangled skein of general rules and fundamental values.

     Yesterday's post introduces the case.  The Christian Legal Society is a student organization at Hastings Law School that in 2004 adopted rules requiring that in order to become members of the organization students must take an oath expressing their adherence to specific religious beliefs.  As construed by the CLS, the oath and the duty to conform to it would exclude sexually active gay and lesbian students.  The law school refuses to recognize student organizations that discriminate on the basis of religion or sexual orientation, and accordingly the law school withdrew recognition of CLS, thus depriving the organization of the right to use the name and logo of the institution, access to certain facilities at the law school, access to e-mail lists of students, and funding.

     This case implicates a virtual blizzard of constitutional principles.  For CLS, three primary constitutional rights are involved:

1.  Freedom of Speech and the Right of Expressive Association

     The Christian Legal Society has the right to express its views, not only through advocacy, but by means of its membership policies.  This right – called the right of "expressive association" – makes it unconstitutional for the government to enforce civil rights laws against such organizations, at least in settings where the organizations is acting in a wholly private capacity and not performing some governmental function, such as conducting a primary election for elective office.

     The principal case protecting the rights of CLS in this case is Boy Scouts of America v. Dale, in which the State of New Jersey had charged the Boy Scouts with violating the state's nondiscrimination law because it had fired a scoutmaster because he was gay.  The Supreme Court ruled that enforcement of the law violated the Boy Scouts' First Amendment right to stand in opposition to homosexuality – and that this right would be infringed if the BSA was required to employ gays or lesbians as scoutmasters.

2.  The Free Exercise of Religion

    The CLS's right to discriminate on the basis of sexual orientation is also based upon its rights under the Free Exercise Clause of the First Amendment.  Religious bodies may not be forced to admit members or hire clergy who are not of the same faith, or who are not obedient to the organization's code of conduct. 

3.  Equal Access

     When government institutions such as schools and colleges open up their facilities to the community, they must provide access in a "viewpoint neutral" manner – that is, the government must not attempt to elevate one point of view over another.  The Supreme Court has specifically held that religious groups are entitled to the same access to public facilities as secular organizations. 

     However, this case is complicated by the fact that CLS is not simply seeking access to Hastings Law School – it is seeking official recognition and funding.  A university – even a public university – also has the rights and responsibilities under the Constitution. 

1.  Government speech

     Government institutions, no less than private parties, enjoy freedom of speech.  By prohibiting recognized student organizations from discriminating Hastings Law School is attempting to inculcate tolerance and civic responsibility among its students.  The law school's First Amendment rights are enhanced by the fact that its recognition of a student organization confers upon the organization the right to use the name and logo of the law school, giving the impression that the organization is speaking for the law school – and the law school does not wish to endorse discriminatory views.

2.  Government subsidization of private speech

      Not only may government institutions speak, they may also elect to subsidize the views of private parties with whom they agree.  Just as the National Endowment for the Arts may decide to fund one form or art or music over another – or "decent" kinds of performances instead of "indecent" ones – universities may choose to subsidize some forms of expression and not others.  Essentially, this line of cases (like the abortion funding cases) stands for the principle that while citizens may have a constitutional right to freedom of speech, they do not have a constitutional right to the assistance of the government in expressing themselves.

3.  Establishment Clause

     Under the First Amendment's that the government shall make no law "respecting an establishment of religion," the Supreme Court has ordered that the government must act in a neutral fashion towards religion.  The government may neither advance religion or hinder it.  The problem, of course, lies in defining what constitutes the "neutral" position.

4.  The power to regulate the conduct of students

     Public educational institutions have the authority to regulate student conduct to a far greater degree than they may regulate student expression.  One of the difficult questions in this case is whether through its nondiscrimination requirement for recognized student organizations the law school is attempting to prohibit discriminatory conduct, or whether it is attempting to regulate the beliefs and expressions of students.

     I will continue the analysis in tomorrow's post.

Visit Professor Huhn's website  for information and links to sources – both timely and historical – on Constitutional Law.