Sunday, May 24, 2015

Maybe Freddie Gray Should Have Made Equality Arguments

Mark Graber

Many friends are excited about Jill Lepore’s recent essay in The New Yorker, “To Have and To Hold: Reproduction, Marriage, and the Constitution.”  One reason is that Lepore gives a shout out to many friends.  Always nice.  The second reason is that Lepore passionately asserts the claim that the lawyers arguing cases raising claims about rights to reproduction, sexuality and marriage should have placed more emphasis on equality than privacy.  She writes:

There is a lesson in the past fifty years of litigation.  When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened.  But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.

Maybe Freddie Gray and the residents of West Baltimore should have tried making equality arguments instead of whatever arguments they were making.  If equality works so well for women, gays and lesbians, then imagine how well equality ought to work for persons of color, who were, after all, the primary concern of the persons responsible for the equal protection clause.   But, of course, the residents of West Baltimore, Ferguson and similar abodes have been making equality arguments for decades and losing.  Rumors have it that the folks at Jeopardy rejected “The last year the Supreme Court supported an equal protection claim made by an African-American” as too difficult.  White Americans, by comparison, have been doing quite well when making equality claims in the Supreme Court for the past quarter-century.  A fair case can be made that repealing the equal protection clause while the Roberts Courts sits may in the long run produce more benefits for racial equality than allowing equal protection claims to come before that tribunal.

Equality has not faired well in the Supreme Court, at least from a progressive perspective, on numerous matters.  The Supreme Court regularly rejects equality claims in campaign finance cases.  The individual right of billionaires to buy elections trumps the equality rights of ordinary citizens to have elections turn more on public support than private funding.  Ever since Rodriguez v. San Antonio School District (1973), the Supreme Court has not looked favorably on the equality claims of inner-city school children.  The Supreme Court’s decision in Shelby County v. Holder (2013) preferred the equality claims of states to the equal rights of human beings.   In fact, outside of reproduction, sexuality and marriage, liberals have not been doing very well in the Supreme Court for a very long time, no matter what they argue.  One might think that the very conservative Supreme Court’s refusal to overrule Roe and recognize a right to homosexual sodomy in Lawrence v. Texas (2003) suggests the remarkable capacity of privacy arguments to appeal to at least moderate conservatives.  Better yet, we might wonder why equality arguments are apparently more convincing when made by proponents of same-sex marriage than when made by the persons of color who reside in West Baltimore.

Here is a guess, fit for a blog post.  Howard Gillman has noted the traditional American understanding that legislative distinctions pass constitutional muster only if they are based on real differences between people and serve the public interest.  When the Supreme Court rejected a constitutional right to gay sex in Bowers v. Hardwick (1986), the justices believed real differences existed between heterosexuals and homosexuals.  Even justices in the dissent made private derogatory references to gays and lesbians.  A major cultural shift has taken place over the last thirty years.  Consider the media portrayal of James Obergefell, the plaintiff in the case presently before the Supreme Court.  “There but for the grace of God go I” is the dominant theme of Obergefell and his partner John Arthur, who recently died of ALS.  Obergefell is one of us.  He could be a neighbor, a co-worker, a friend.  Once we acknowledge that Obergefell is one of us, the conclusion follows naturally that people just like us get the same rights that we enjoy.  In short, the recent success of the movement for same-sex marriage has everything to do with culture and little do do with legal arguments.  Once a cultural shift in the United States occurred such that gays and lesbians were perceived as just like us, the equality argument was bound to succeed, not because equality arguments are particularly powerful, but because the cultural prerequisites for the equality argument were in place.

Freddie Gray is not just like us.  We can imagine having a family member taken away from us by illness (and almost certainly have neighbors, co-workers and friends who have experienced that horror), but we do not run from police officers.  Our neighbors, co-workers and friends do not run from police officers.  We cannot imagine Freddie Gray as a neighbor, co-worker or friend.  He is different from us and, as traditional equal protection doctrine prescribes, people who are different from us may be treated differently.  Of course, Freddie  Gray and the residents of West Baltimore may have rights.  Rights are for people who are different from us.  Jews think Christians should have the right to worship not because we all worship the same god, but because people should have the right to worship differently.  Equality, by comparison, is for James Obergefell because what he wants, we have come to believe, is exactly what we want.

My hunch is that the Supreme Court will support James Obergefell (not exactly a surprise), equality rights will play a major role in the opinion (here is hoping for a deserved shout out to Andy Koppelman) and that there will be fewer dissenting votes than many anticipate.  Chief Justice Roberts is very sensitive to his role in history and knows well that history is on the side of same-sex marriage.  Preventing same-sex marriage is not what this court is about.  Preventing government from addressing substantial race and class inequalities is far closer to the Republican constitutional heart.  And by supporting the equality claims of James Obergefell and other people just like us, the Roberts Court will gain more political capital to sometimes ignore and often place obstacles in front of the equality pleas of Freddie Gray and other persons not just like us.

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