Sheridan: Con-Law

GAY MARRIAGE

The Eighth U.S. Circuit Court of Appeal has this interesting decision holding that the State of Nebraska was within its rights to amend its constitution to define marriage as an arrangement between a man and a woman only, which prompted a challenge by proponents of gay marriage.

San Francisco Superior Court Judge Richard Kramer issued an opinion  in March, 2005 ruling that a ban on gay marriage was unconstitutional on Equal Protection grounds.  His decision was recently challenged before the California appellate court for this district, decision pending.

The 8th Circuit decision explains why the decision in Romer v. Evans doesn't, or shouldn't, control, and illustrates why gay marriage proponents are in for a difficult legal contest.

SPORTS

If it weren't for sports we probably wouldn't have had equal protection of law.  Check the progression:  1619 a Dutch vessel arrives in the Chesapeake and sells a load of African slaves, a low value cargo as there's not a lot of need for slave labor yet.  Things change when the settlers find out about Indian tobacco, which is labor intensive to cultivate and cure.  It gets worse when cotton becomes profitable after Eli Whitney's invention of the cotton gin in the 1790s.

After that, our history is one of increasing slavery along with laws created to reinforce and perpetuate the system.  Along the way, slavery goes, in the mind of the white south, from a peculiar institution to a necessary, evil to a beneficial way of life.  The only way this can happen, of course, is to treat blacks as being in a separate human category, or worse, a non-human category, both of which were commonly done.

Matters become so entrenched that it takes a bloody civil war, 600,000 dead, both sides, plus civilians, before the slaves are freed, first in the south by Lincoln's famous emancipation proclamation, and then in the border states as well in 1865 by the end of the war and the adoption of the 13th Amendment.  But the prejudice remains firmly fixed in the mind of the south and much of the north, 'til today.  Why?

From Reconstruction (1865-1876) on through 1954 when the public school integration decision, Brown v. Board, was decided, blacks were subjected to legalized second-class citizenship, where their rights were fewer and lesser than those of whites.  The leading example is that of Rosa Parks, who, in 1955, refused to take a seat at the back of the bus, reserved for blacks, and was arrested.  To her support came Martin Luther King, Jr., a young minister, the son of a minister.  Investing much energy and taking significant risk, the resulting civil rights movement produced a lasting change in the way this country deals with its many populations of differing ethnic groups.

The NYT article below tells the story of Robert Grier, a black football player who played center for the U. of Pittsburgh, which played the U. of Georgia in the Sugar Bowl in New Orleans, Louisiana.  The governor of Georgia, however, didn't want to see a black football player playing against his state's team in the Sugar Bowl against his all-white team.  Adolph Hitler didn't enjoy seeing U.S. Olympic runner Jesse Owens, black, beat the master race at the Berlin Olympics in 1936, either.  Hitler stormed out of the stadium rather than pin a medal on Owens, who became an instant hero in the U.S. among blacks and whites for showing up Hitler and allowing the U.S. to maintain the democratic fiction despite the racial suppression practiced everywhere.  That was two decades earlier.  Apparently we'd learned little, especially in the south.  But much of the country had changed its lights.  There have always been at least a few people who could see clearly through the cracks in the lens of racism.

Meanwhile two significant other developments on the race relations front were occurring.  The Brown Bomber, as he was called in the white press, Joe Louis, became the heavyweight prize-fighting champion of the world, beating the German, and Hitler's propaganda favorite, Max Schmeling.  Owens and Louis were making the U.S. look good against the master race championed by Hitler.

Then came the war, and Joe Louis was enlisted by the Army, which he joined, to sell war bonds used to pay for the war effort.

After the war, in which many black troops fought for America, they objected to being treated the way they'd been before the war after they'd fought Hitler in the name of democracy, freedom, and stamping out the racism that cost six million people, mostly Jewish, their lives under Hitler.

The leading example was Jackie Robinson, a UCLA star athlete in football who ran into difficulty in the Army during the war over his refusal of Jim Crow treatment at the hands of white southern superiors.  Jackie Robinson, was, of course, the first player to break the color line in major league baseball, playing second base for the Brooklyn Dodgers.  An excellent fielder and hitter, he drove opposing pitchers wild with his aggressive base stealing, including home -plate, when games were on the line.

The phenomenon was that white fans were cheering black athletes.  Black athletes were the engine pulling the civil rights train in the public mind, while black lawyers such as Thurgood Marshall brought the lawsuits that cemented the victories legally.

The classic book on Marshall is Richard Kluger's "Simple Justice," the story of Brown v. Board.

Lawyers have an interest in the peculiarities of the human mind because this is where so much of our law comes from, if not all, good and bad.

In the NYT article today by Pete Thamel, the story is told of the black football player who was subjected to racial hostility when he played down south.  But that's not what's so interesting.  Yes, the governor of Georgia, Marvin Mitchell, objected in 1956.  That was a matter of course for then and there, or at least that's the way it had been.  Times were changing.  Not fast, but changing nevertheless.

What is remarkable is that the Georgia governor's son, says, today, that his father was not a racist.  He objected to blacks playing against whites in the south, yet is not considered by his son as a racist.

This is very interesting, don't you think?

How can objecting to a black football player playing in a bowl game against whites NOT be considered racism, you might ask.

Here's the report of the son's position.  The son is a newspaper editor today and realizes, presumably, that racism is a terrible injustice, widely condemned today, to inflict on a person:

His son, Sam Griffin Jr., who was a student at Georgia Tech at the time of the controversy, said in a telephone interview that his father was not a racist. He said that his father ran as a segregationist and his position was simply a political stance indicative of the political hyperbole of the time.

Sam Griffin Jr. said his father was opposed to Georgia Tech's playing in the game as a matter of upholding segregation laws. If he had not, Griffin Jr. said, his father's critics would have panned him.

"It was a gotcha either way," said Griffin Jr., who edits and publishes The Post-Searchlight newspaper in Bainbridge, Ga. "It was one of those things like, 'Are you still beating your wife?' There wasn't a whole lot he could do about it."

Griffin Jr. added: "No one was going to get elected back then who didn't run on that type of a platform. He was not a racist. I don't know if you can understand that or not. A segregationist believes in segregation, equal but separate. It was the way things were. It had been that way for 100 years."

Griffin eventually backed down from his stance, partly because of the intense public reaction.

I've highlit the interesting rationalizations, justifications, excuses, etc., in reporter Thamel's interesting account.

Let's say those claims, of the son, are perfectly accurate.  The governor probably had black hired servants that he treated civilly.  Probably had a black maid at the governor's mansion and treated her respectfully, so long as she used the back door.  Gave her leftovers from the kitchen and his used suits for her husband.  I wouldn't doubt that.  This was common in the complicated dance we do between races.  These are not signs of hate.  But they're not signs of respect, fairly speaking either.  The respect was limited to those who knew and kept in the place that white convention assigned them, which in the case of blacks was in the second-class, at the back of the bus, literally as well as figuratively.

It seems hard to understand how people could behave one way yet maintain something else entirely.

Out of such schizophrenia societies are made, and ours was no exception.

The question to ask is, "What are the mindless, schizophrenic, crazy-making things that you and I are doing today that are neither different nor better?"

Lemme know when you've got it figured out, because it's going to play big in Conlaw.

POLL TAX

We don't have poll taxes any more.  A poll is the top of your head, useful for counting heads for tax purposes, as in per capita.  Capita also means head, or so I've been told.

Back in the day, down South, the slaves were freed after the Civil War.  The 15th Amendment gave the freed slaves the right to vote.  But the Southern whites didn't like that change in the political power structure.  Since the Constitution leaves it up to state law to set the election rules and who may vote, southern states decided that a good way to prevent blacks from voting was to put a tax on every voter. 

Poor blacks wouldn't be able to afford to vote and the whites would win by default. 

But what about poor whites?  They couldn't afford to vote either.

Not to worry said the southern politicians, we can fix that.  We'll make it a rule that you don't have to pay the poll-tax if your grand-daddy voted.  Since only whites could vote before the Civil War, their grandchildren could all vote tax-free after the war.

Blacks had to pay the tax, since none of their grandfathers had been allowed to vote, since they had been held in slavery.

My friend Jerry Varnado, whose son is a cadet at West Point preparing to defend this country, comes from the State of Mississippi.  Knowing of my interest in subjects having to do with Constitutional Law, Jerry provided me with the documents, pictured below.  They are his parents' poll tax receipts, one from 1965, certified by Sheriff Fred Pickett hisself, of Hinds county, in which they lived, and two from 1957, one for each parent. 

It was risky voting back then.  You could lose your job, or your mortgage, or worse.  This is what the civil rights marches were all about, trying to fight that.  The 1965 Voting Rights Act put the U.S. Department of Justice behind black voters for the first time.  After that, white politicians who were smart enough to count votes began to tone down the rhetoric and reach out to black voters.  There's been a big change in attitude over the past four decades now that blacks can not only make themselves heard, but back it up at the polling stations on election day.

The Varnadoes put up with the indignity of being made to pay a tax to vote, in order to exercise their rights as citizens.  Dr. Martin Luther King, Jr.,  whose birthday we now celebrate as a national holiday in January, made his name in large part by leading marches and demonstrations to register people to vote, black people, in the south.  That was what the march at the Edmund Pettus Bridge in Selma, Alabama, was about.  People had their heads broken, and died, to gain the right to vote in this country, not that long ago.

The poll-tax was ruled unconstitutional in 1966 in Harper v. Virginia Board of Elections as a matter of equal protection of law.  In 1967, in Loving v. Virginia, the laws prohibiting inter-racial marriage were also declared unconstitutional.  Why did it take so long after Brown v. Board (1954)?  According to Justice Felix Frankfurter, in a letter to Learned Hand of the Second Circuit U.S. Court of Appeal, it was because the Court had stirred up so much controversy with the integration decision that the justice needed to lay low for awhile.  There'd been plenty of requests to take up these issues, but the Court always declined to grant certiorari. 

Was the Court chicken?  Perhaps, but another way of looking at what the justices do is to see that they gauge how far they can go in terms of public acceptance of what they order up.  If they anticipate that the public, by and large, will not accept, neither will they.  Thus the Court took a duck on the 'under God' issue in Newdow v. Elk Grove School district in 2004, declining to find standing on the part of the claimant.   Despite Lawrence v. Texas, do you think the Court is ready to take up the gay marriage issue?  The rest of the country is not San Francisco, mind you.

Then why did the Court decide Brown v. Board the way it did in 1954?  Certainly the south was not ready to accept public school integration, nor much of the north.  In fact, the south met the decision with 'massive resistance' to integration in the public schools, and the north responded with white flight to the suburbs.  We deal with the effects to this day.

 

It's one thing to declare a practice unconstitutional and another to see it eliminated.  One of the frequently made complaints is that black voters are challenged at the polls to prove their eligibility to vote.  White poll watchers may ask blacks if they have any criminal record, but not whites. 

Has the public school integration decision, Brown v. Board (1954) resulted in actual public school integration?  I heard an educator who'd spent seven years studying this question by visiting different states all over the country say that if the name of the school is, for example, the Martin Luther King, Jr. School, you can expect it to be overwhelmingly black. 

Although legally mandated segregation is history, actual segregation, the result of housing patterns resulting from such things as white flight to the suburbs and loan underwriting practices of the federal Housing and Urban Development Department and its predecessors have provided social and economic support for continued segregated living patterns resulting in continued segregated schooling.

Click to enlarge.

Thank you, Jerry, and thanks to your parents, and son, Jerry, Jr. for all of your efforts to make this a better place.

PHOTO: COLORED ONLY; SUGAR BOWL TICKET, 1961

After class one evening a student remarked how amazing it was to learn how nasty Jim Crow was in this country.  What amazed me was that the student was amazed.  I'd made brief references to examples of  the racist attitudes that, of necessity, produced so much of the constitutional law that we study.

I'd mentioned this to Jerry V., a friend of 30-years standing, who remembers those days only too vividly.

During a lovely brunch cruise on San Francisco Bay over the Memorial Day weekend as the guest of Jerry and his wife, Marilyn, in honor of their son, Jerry, Jr., who has successfully completed his second year at the U.S. Military Academy at West Point, where my nephew graduated and who is now in active service, Jerry provided me with the football ticket, below, from his family archives.

Jerry grew up in Jackson, Mississippi, and did his bit for civil rights, in a manner of speaking, by helping to bring San Francisco State University to a standstill in 1967 with the Black Students Union.

Jerry practiced law before going into business and his sister is a Mississippi state legislator. Marilyn is an IT program manager at Stanford Medical Center keeping track of heart transpants.  Jerry agrees that there's been a considerable easing of racial tension in this country over the past half-century, with room for more.

Good. 

Keep forging ahead.

Click to enlarge and don't overlook the fine print:

This game was during the presidency of JFK, three years before the Civil Rights Act of 1964.  Today the fellow catching the football might just as well more closely resemble Jerry Rice as Dwight Clark.

One of the cases that stands out in my mind as emblematic of this change is one that I call "Marry a Black and Lose Your Baby." 

A white Florida couple had split up and the mother had custody of the daughter.  When the mother took up with a black man, the father moved to change custody, as he didn't want his daughter living in the same home with a black.  Reasoning that the child would be subjected to taunts by white classmates, the Florida state judge ordered that the best interests of the child required that she be taken from the custody of the mother and given to the father. 

My guess is that the father felt his standing was in peril in his own social circle.  "You mean your daughter is living with a black man, and you're not doing anything about it?  Well, if that was my daughter I'd sure do something about it...."  That's how it went.

The U.S. Supreme Court reversed the order.  Private prejudice may exist in the world, the unanimous Court reasoned, but that doesn't mean that government must bow down to this reality.  In fact government and its agents, such as judges, may not bow down to private racial prejudice in official actions.

That's a big change from the days when government mirrored private prejudice in legislation, court decisions, and the acts of executive officers such as educators, police, loan officers, etc.

The idea that government may not bow down to private prejudice is a broad principle.  In wondering how far it may be taken, I can say that a number of constitutional law professors joined in submitting a friend of the court brief in Lawrence v. Texas (2003), the equal rights case that grew out of an anti-gay statute, and this is one of the main principles that they argued, I'd like to say with considerable success, but I must say that I've just rechecked Lawrence and do not see Palmore cited.  Why?  There was enough other authority, I presume, to avoid extending Palmore out of its context. 

Some justices might have felt that broadening the principle might raise difficult questions such as how one knows when a democratic majority acts within the bounds of reason, and when it is merely exercising a collective irrational prejudice.  However, this is why the Court invented screening devices such as the rational basis test, intermediate, and strict scrutiny, to deter irrational, traditional, prejudices.

The case is Palmore v. Sidoti (1984).