Adventus

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Wednesday, April 08, 2015

The more they remain....

Yeah, yeah; we have to keep asking....

I suppose the advantage is, getting to see it stated plainly:

"This isn't about discrimination," DeLay said in an interview with Newsmax. "We love people that have chosen to be homosexuals. The problem is we abhor the sin. So yes, when I have a business and some gay person walks in —unidentified by the way, there's no way he could tell you— then I'm going to serve him. But if he comes in and asks me to undermine my values, what I believe in —undermine my religious liberty then I have the right to not serve him. It's not discrimination. It's the government telling us how we are to act, what we are to believe, and that has got to be fought with every ounce of our being."
Ignore the "have chosen to be homosexuals" line; that's a red herring.  What's interesting here is the concept of "religious liberty."  You undermine my liberty when you undermine my values. Can I use that to refuse to pay taxes that support the U.S. war efforts?  Can I use it to discriminate against other people?  But we've had that argument, haven't we?  And we decided, as a society, through our statutes, that it would not prevail.

Which brings up a separate point:  what if the Supreme Court decides same-sex marriage is not only allowed under the Constitution, but cannot be denied under the Constitution?  The precedent here is supposed to be Loving v. Virginia; but the real precedent is actually Brown v. Board of Education.

Brown v. Board was handed down 10 years before the Civil Rights Act was passed.  I don't know the legal history well, but I do know enforcement of Brown hadn't spread to East Texas (the "Southern" part of Texas; in many ways, it's just western Louisiana) until 1970.  Court ordered desegregation of Boston schools started a few years later (the year I entered college; something, as a Texan, I never quite forgot.  Of course, they were still fighting over it in Austin when I got there in 1978.).

According to this Slate article, Brown wasn't really effective until after 1964.  And I understand that by 1967, when Loving was handed down, very few states in the country still made mixed race marriages a criminal act.  Which is the major distinction between that decision, and any ruling on same-sex marriages today; at least from a Constitutional standpoint.

I also know that, today, the Loving decision is uncontroversial; while Brown, while still hailed as a landmark, is basically dead.  The news is full of failing and grossly unequal public school systems; but nobody decries them as a violation of Brown, and no court is making any effort to enforce Brown in any meaningful way.  The same can be said for Roe v. Wade:  that fight has never been won politically, and so it goes on, over 40 years later.  Roe has turned into a perpetual battleground, while Brown is honored in breach, and not at all in the keeping.

And the distinction between them is:  it takes a community to support a school system, and they will only support the school system they agree, through laws primarily, is valid.  Courts protect rights under Roe, to the extent they do, for individuals; enforcing rights under Brown requires enforcement against communities.  If the communities refuse to cooperate, enforcement breaks down.  Our school systems should be much, much better than they are; but we have to decide to make them better, not expect an outside force to do it for us.

If the Court rules that same-sex marriages must be allowed under the Constitution, don't expect the fight over "religious liberty" to end, in other words.  There was no similar fight in '67 because no one really quarreled with the Loving decision by '67.  The people had pretty much spoken, in the Civil Rights Act and the Voting Rights Act.

In fact, the fights that continued involved not implementation of those Acts, but whether or not they were enough.  Affirmative action, still controversial today (and never fully implemented), began after 1964; and was thwarted, more than aided, by the Supreme Court, starting with the Berger Court that succeeded the Warren Court.

As the Slate article argues, we really can't look to the Court to save us.  It's heritage and history has been more to thwart progress, than promote it.

Tom DeLay is a braying ass; but the best way to defeat his idea is in the Congress.  The legislative solution to this "religious liberty" argument, spurious and offensive as it it, is to amend the Civil Rights Act to include sexual orientation (not "preference") as a protected class.  We have never, as a society or through our legal system, allowed discrimination to be protected by the First Amendment.  We don't need to start now.

Because, after all, you can "choose" to be Catholic, or Protestant, or non-Christian; and we could even argue nationality and race are a choice, to some degree.  We know we don't want to return to that basis for legalizing discrimination.  But it will be far more effective if we make that clear in our statutes, rather than leave it up to the preferences of 9 bickering individuals.

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