Archive for March, 2007

Interracial Marriage

Posted in Race Relations Law, The Law on March 22nd, 2007

This is part of a seven-part series on Race Relations that are being considered for submission.

The anti-miscegenation laws that were once common in the US received their first major blow in Perez v. Sharp. There, the California Court held that laws banning interracial marriage violated the Equal Protection Clause of the Federal Constitution. Although such a reading seems fairly obvious to those of us who grew up post-Brown, this was not always the case.

After all, a narrow reading of the Equal Protection Clause would only concern laws that single out a group, especially a racial group, for disparate treatment. Interference with the ability to own property, to contract, and the ability to testify were the classic violations thats seemed on the forefront of the minds of those ratifying the fourteenth amendment. On this ground, some still believe that Brown v. Board of Ed was not a faithful application of Constitutional law, although most agree with the result.

Some of those opposing this result reasoned that these laws applies equally to both races. Whites were forbidden to marry blacks, distributing the burden equally. In fact, the burden fell disproportionately on whites, who were forbidden from marrying a number of races. Ironically, this provides evidence of the invidious nature of the discrimination – it was “white blood” that the legislators were concerned with protecting, and it was just fine to “taint” black bloodlines with persons of any other race.

In the wake of the Court’s decision in Brown, Loving v. Virginia was comparatively uncontroversial, or at least tame. SCOTUS finally applied the Equal Protection analysis to anti-miscegenation laws, overturning those state statutes that remained. Ironically, this case presented the opposite of many modern racial EPA claims, in which laws that create explicit racial classifications spring from a benign legislative intent. I am speaking, of course, about Affirmative Action. Just as there are those that hold that the EPA should only be applied to explicit categorization, there are those that would distinguish instead on the purpose of the legislators. Those that evidenced an invidious racially discriminatory attitude, such as laws preventing interracial marriages, should be outlawed. Those that attempt to aid minorities, such as university affirmative action, should be allowed.

While this approach is appealing, it requires a standard not unlike our First Amendment ‘obscenity’ principle. What categorizations are invidious, which are benign? In general, we know them when they see them. While some espouse a ‘legislative intent’ analysis, this approach has several flaws. Legislative intent is notoriously difficult to discern. What i those speaking on the House floor speak of benign motivations, but the majority of those voting do so with prohibited intentions? What if representatives who oppose the measure speak in favor of it, bu include prohibited motivations to weaken its judicial longevity? While a reasoned observer may be able to “see through” such attempts, doing so would bring us back to the “I know it when I see it” approach.

The second means of discerning between the two is in effect. Does this law hurt or help minorities? The anti-miscegenation laws provide a good example of how hard this analysis can be, since that law “hurt” whites more than it did other racial groups. Affirmative action programs that set quotas to mirror societal distribution can be applied to harm Asians. In theory, a state could create a high quality blacks-only law school, enabling segregation to benefit minorities. In these circumstances, an invidious law could help, and a friendly law can hurt.

This problem is compounded by the many situations where it is difficult to tell who is harmed and who is benefited. In the EPA context, this is especially troublesome, since courts are not equipped to do the kind of statistical or other analysis that might be necessary to decide. For example, busing laws that set high school quotas could arguably help the minorities who get the opportunity to go to better schools. But when those programs are mandatory (as some are) a minority could well argue that they are harmed by a long commute to a different community.

So then we are left with the original plan – an ad hoc analysis of intent. This, too, is weakening, as a number of jurists seem more inclined to strike down so-called “benign” racial classifications. Are they simply being faithful to a texualist approach to the constitution? Are they using their position to combat policies they disagree with on an ideological level? And should it matter which?

It might – if only because the textualist approach is susceptible to the same faults of other approaches – use when convenient. While some textualists have applied this approach faithfully against their own ideological interests, this is not a universal trait. However, the tendency of this approach to favor a conservative viewpoint imparts a vague consistency that could well be seen as intellectually coherent.

The alternative is to strike down laws that violate the “spirit” of the 14th Amendment – protection of minorities from discrimination. Ironically, this very approach has been endorsed by textualists in the application of the EPC to other disfavored groups – such as women and gays. Why is there a less rigorous judicial review of such classifications? Because the purpose of the EPC was to end racial discrimination. Therefore, an Equal Protection analysis that disregarded a ‘purpose’ analysis in favor of a formalist analysis (as to whether any racial classification is created) would also require abandoning the ‘purpose’ justification for a less searching review in other contexts.

Here I do not argue for one approach or another. I merely state that of the choices one has to make whether to:
1. Create a bright-line rule that prohibits all categorization, or
2. Look to the intent of the legislation (albeit without any bright-line rule)
entails a choice between formalism and functionalism, a textualist approach that looks to the language of the EPA or to the purpose of its enaction. The choice one makes here, if it is to be done consistently, will dictate the remaining decision to be made in the Equal Protection jurisprudence.

Can I Compare Thee?

Posted in Race Relations Law, The Law on March 18th, 2007

This is part of a seven-part series on Race Relations that are being considered for submission.  

Last week, we debated in Race Relations about the comparison between the civil rights struggle and other modern controversies – specifically, gay rights. The discussion branched off in two directions, which the class seemed to have trouble separating,

1. Is it an apt comparison?
2. Are such comparisons permissible?

Are Race and Sexual Orientation Comparable?
The discussion started by asking whether we can make a fair distinction between racial and sexual orientation discrimination. The main distinction that was discussed was that racial discriminations are based on purely identity, and sexual orientation discriminations are based on behavior.

This distinction brakes down on several levels. First, drawing a harsh line in the sand that allows the government to draw any policy distinctions that are based on behavior opens up the door to some long-decried policies, such as those against interracial marriage. Second, this distinction overlooks the fact that some of our more subtle biases are not based on behavior, but on identity. Lastly, this distinction is not necessarily strong enough to moot the comparison entirely.

The laws banning interracial marriage were defended, in part, because they were based not on identity, but on behavior. the greater defense was that they applied equally to all – a parallel reasoning. If one were to say that only identity-based discriminations were forbidden, the laws against interracial sex and marriage would be justifiable. The response to this was that we have decided that gender, but not race matters in marriage. The main problem with this is that it does not make the line-drawing any more valid. All it does is disallow the state from making a behavioral distinction based on the soundness of the policy. It leaves open the door to the possibility that the state will come up with a justification for the policy.

And indeed it has. Prof. Kennedy pointed out that it is by no means clear that gender matters and race doesn’t in the context of marriage. The laws against interracial marriage were based on a policy against miscegenation – the idea that keeping the races ‘pure’ is a goal of the state. While this may sound ridiculous by today’s standards, remember that moral objections with no sound basis in actual harm is a valid basis for legislation. This is how anti-sodomy laws stood for so long.

So if the state may prevent people of the same gender from marrying on the basis that marriage is for procreation, the state also has the right to prevent people of different races from marrying. Although the reasoning behind one may be more sound than the other, it is this reasoning alone, colored by community sentiment, that allows a distinction. This is a dangerous proposition, since it leaves open the possibility that, should community sentiment differ, the state still has the right to make race-based distinctions that are grounded in behavior.

Furthermore, the soundness of the basis for distinguishing gender doesn’t quite hold up if you strip it of its moral dimensions. While the state could make out a case for wanting a child to have a parent of each gender, restricting marriage no longer accomplishes this goal. Preventing people from marrying no longer prevents them from becoming parents. A child whose parent has a gay partner (either from adoption, surrogacy, or a previous relationship) does not magically get transplanted into a heterosexual household by denying that couple the right to marry. The only practical effect is lessening the support the couple receives (such as survivorship and health benefit rights) and the lessening of the stability of that relationship.

Nor does restricting the right to opposite-sex couples in any way strengthen the idea that marriage is for procreation. Pointing out the hypocrisy of this contention, a gay-rights group in Washington, DC has proposed a ballot measure to require hetero couple to have a child or annul. The broad reaction to this proposal has (fortunately) been that it is ridiculous. There are many situations in which heterosexual married couples do not have a child. Furthermore, the rising number of gay couples with a child makes it less and less likely that their marriages would seruously harm the dying proposition that marriage is for bearing children.

Secondly, the discriminations against gays are not based entirely on behavior. For example, the military policy against gays does not turn on them being sexually active. A virgin who admits he is attracted to other males is pretty damn likely to be kicked out of the military. It would therefore hinge on his identity. Unless one is going to carve out a specific exception for elements of one’s identity that need to be disclosed (as opposed to those, like race, which are often self-apparent) this further highlights the weakness of that argument.

Lastly, the difference between behavioral and identity-based distinctions is not clearly sufficient to differentiate between the two for discrimination purposes. The person articulating this line stated that even if homosexuality was an inborn inclination, we have precedent for behavior-based laws that ask people to suppress their inclinations – such as preventing kleptomaniacs from shoplifting. This example serves to highlight how sexuality can be in many respects, akin to race.

Let’s take the differences. Classmates pointed out that stealing is a crime. I would instead highlight that stealing is a crime with a victim – as the student pointed out, sodomy used to be a crime as well. Instead, let us draw a distinction between natural inclinations which, if carrying out would case harm, and those which would not. Although one could argue on the basis of religion or an unsupportable moral judgment that being gay also causes harm, they would be hard-pressed to find an external victim and concrete proof of harm. In this respect, being gay is more like interracial marriage – the harm is abstract at best.

Let us also move on to the severity of the state’s regulation. While making theft illegal may impose a burden on those inclined to steal, it is not akin to the burden that the state places on gays. The Court has long recognized that marriage is a fundamental right. When what one is being denied is the right to marry, the right to love the person of their choice – the right to sex – it becomes clear that the state has a higher obstacle to overcome in justifying this distinction.

Are We Allowed to Compare Them?
This discussion can be made with regards to a broader range of comparisons. Should people be forbidden to use the civil rights struggle and the holocaust in modern dialog? Should those topics be off-limits? The class seemed to have trouble distinguishing this from the first, so I will try to make this more clear. This accusation seems to turn less on logic than on emotion. The reaction to such comparisons tends not to be to point out how the groups are differently situated, but anger. How dare you use our struggle? A group can feel that they are being used, that what they went through was being diminished.

Especially in light of my recent experiences in Taboo Subjects class, I would argue that we should make no comparison off-limits. As with many topics, preventing discourse from happening does little good. Are blacks actually harmed by comparisons? Do we think better of Hitler today than we did 40 years ago by virtue of the countless comparisons that have been made to the Holocaust? As long as the comparisons being made are logical in nature, and not just an attempt to exploit the emotions that the compared struggle contain, they should be allowed.

If the comparison is apt, we are allowing the past wrongs to serve a broader purpose. The phrase ‘never again’ in terms of the Holocaust is only given meaning if we take the lessons we learned there and apply them to Darfur and Kosovo. To deny groups the right to make these comparisons is to moot the purpose that many survivors have given to their stories and their survival – the lessons we, as a society must learn.

If the comparison is a bad one, better to refute it with logic. By doing so, we take the weapon away from the person seeking to make the comparison just as much as we would do with a refutation based on emotions or political correctness. The latter two strategies run the risk of applying to the first category – applicable comparisons. By relying on logical refutations of comparisons, we eliminate the possibility that we will unnecessarily shut down conversations that could contribute toward a greater collective wisdom.