Equal protection and the Golden Rule

Equal protection and the Golden Rule February 28, 2012

If I wanted to pass a law explicitly for the purpose of denying civil rights to one specific minority group, would that be constitutional?

No. No it would not. Thus though the Defense of Marriage Act is still the law of the land, it’s an illegal law. Two federal judges have now said so, as Andrew Rosenthal reports, “Blatantly Unconstitutional Law Ruled Unconstitutional“:

[Bush appointee U.S. District Judge Jeffrey] White is the second federal judge to find that Section 3 of DOMA — the bit that defines marriage as between one man and one woman — violates the equal protection clause. He said that it does not satisfy heightened scrutiny (meaning DOMA does not further an important government interest) and might even fail rational basis review (a lower standard, meaning the law does not further a legitimate interest).

The equal protection clause guarantees equal protection under the law. It is, in other words, about basic fairness, about simple justice.

I’ve been encouraged recently to begin to see more people from my own evangelical tradition recognizing that this equality under the law is the core of the current dispute over marriage equality. Those who realize this can in turn realize that their own religious views or beliefs regarding homosexuality are irrelevant to the matter of equal protection under the law.

Many are even speaking up to suggest that defending others’ equality under the law is an expression of the Golden Rule, which is to say it’s a good, loving, Christian thing to do.

Here, for example, is Tiffany Lucas on “Why, as a Christian, I’m Not Joining the Fight Against Gay Marriage“:

Washington State has legalized same sex marriage and there is no doubt that Christians are often fired up about this issue. We are rallying, we are petitioning; flat out, we are against this. “This should not happen. This is an abomination. God would not approve. They are sinning. It says right in the Bible that what they are doing is wrong. Have they not read Leviticus? What about Romans? It is our job to fix them, not give them the right to marry. It is the end times and they are surely all going to hell.”

Except, I don’t believe that, and I am a Christian. In fact, I support gay marriage.

I want them to have the right to get married. I want them to have the right to love who they choose. And, really, I can’t help but wonder if God does too.

And here’s Jared Byas on “Evangelicals for Gay Marriage“:

If the Church wants to keep marriage between a man and a woman because of their religious convictions, so be it. Remember, this isn’t about the “sinfulness of homosexuality.” I understand that stance within the Church. But I will not support using the government’s power to coerce powerless non-Christians into behaving like Christians.

And here’s my favorite of the bunch, Elizabeth Esther says, “I voted yes on Prop 8. Today, I’m thankful Prop 8 was ruled unconstitutional“:

The great thing about hindsight is that it gives you a chance to fully re-examine the ways your actions affected other people. For many Californians, loving our gay neighbors as ourselves isn’t an abstract idea. It’s real. It’s here. It’s right next door.

There’s nothing like the immediacy of an idea to drive its meaning home. Which is to say, when I vote to deny someone else the same rights I enjoy, there’s nothing quite like seeing that person every day to realize what exactly it is I’ve done.

Quite honestly, I was unable to reconcile my voting yes on Prop 8 with Jesus’ command to love my neighbor as myself. Ultimately, I had to ask myself this question: is it spiritually consistent for me to vote on a measure that would deprive my neighbors of rights I wouldn’t dare be deprived of myself?

For me, that answer is no, it’s morally inconsistent to deny others the same basic rights and freedoms I enjoy as an American citizen.

That’s only three examples, so I can’t say if this is a trend. But whether or not it proves to be a trend, I think it’s at least a mustard seed.

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  • Guest-again

    ‘If I wanted to pass a law explicitly for the purpose of denying civil
    rights to one specific minority group, would that be constitutional?’

    Yes – they are called felons. And we in the U.S. are manufacturing them at a fairly high rate, especially in regards to another minority group, who, if I understand right wing pronouncements, get all the benefits and none of the disadvantages of being a minority. Except for being far more likely to join those forbidden from voting. A cynical person would almost hink that a privatized prison system had an interest in creating non-voters at a rate sufficient to help ensure an electoral balance favorable to those interested in maintaining that profitable industry sector.

  • Anonymous

    Felons are not a “specific minority group.”  They’re individuals from all different groups who have committed certain actions.  Whether our penal system is right in the way it punishes is another conversation, but there’s clearly nothing unconstitutional about the state applying consequences as a response to illegal actions.  I’m also completely at a loss for what you’re referring to with the “all the benefits and none of the disadvantages of being a minority.”  What group are you referring to?  I can’t think of any group where that claim makes sense.

  • “No, my purpose here is to ask you to step out from behind your Bibles for a minute.” (From Tiffany Lucas’ piece.)

    And there, I think, we find the dilemma. If the Bible is the Absolute Arbiter of All Things True, how DARE we consider anything else? *frustration*

    Beyond that, I’m with you Fred. I hope this is a mustard seed, and I hope to God our country is finally fertile soil.

  • FangsFirst

     Guest-again was speaking in code for:
    “Blacks are disproportionately convicted, and already seen as getting all benefits and no disadvantages according to the right wing.”

  • Another thing is that once a person has served his or her sentence he or she should be free to then fully participate in society. By denying the right to vote on a basis that is not legally protected, the effect is to legalize discrimination on the basis of a criminal offence. :(

  • friendly reader

    And let’s not forget that many of these “felonies” aren’t rape/murder/arson/grand larceny but “having marijuana,” or “pleading to suspicion of having marijuana because you can’t spend time and money on a trial.” The New Jim Crow =  required reading.

    (I’m not 100% in favor of just legalizing all drugs, but I am in favor of making them not be felonies – no jail time, perhaps fines and attending addiction programs or doing some community service)

  • Dan Audy

    I’m not necessarily in favour of legalizing all drugs but definitely in decriminalizing them (a subtle though somewhat semantic difference).  After the spectacular success of decriminalization in Portugal I can only see two reasons to continue supporting the current policy (1) Too caught up in posturing and being ‘right’ to be honest about what is best for everyone (See anti-abortion advocates and sex education/contraception or (2) Like the social impacts of current policy (See For-Profit prisons, suppressing non-white voters, funding military-industrial complex).

  • friendly reader

    Well, and I should have maybe put an emphasis on the “just” and “all.” Some drugs could be legalized with few problems, but I don’t take the libertarian and Ronbot position that if we legalized all drugs that alone would fix the problem because of free market magic. Something more comprehensive, ala season 3 of The Wire, something that gets at the systemic elements of the problem, that seems more sensible.

    I will check out Portugal, btw, though obviously the situations are probably pretty different…

  • Tonio

    Dumb question for Fred – why couldn’t people opposed to homosexuality simply treat it like the Amish treat phone and electric service, as something they eschew themselves but don’t begrudge in others? Even if they believe that gays will get their punishment after death, why couldn’t they acknowledge that they have no control over what other people do, only what they themselves do? I doubt that their opposition is really about convincing people to save themselves before it’s too late, but about protecting themselves from being collateral damage whenever the vengeance comes.

    Gene Weingarten on Rick Santorum:”Have you all noticed Santorum’s eyes?   He seems perpetually scared; he
    is cowering in fear for his mortal soul.   He thinks there are rules by
    which we must live to please a thundering, jealous, retributive God.  
    He thinks there should be laws telling people not to be gay, otherwise
    they might be. ” So Santorum is essentially the child of an abusive parent trying desperately to convince a sibling not to do anything to provoke the parent’s anger.


  • I just want to print out a card with the definition for toevah on it.  & maybe a picture of shepherds & lobster.  Hey, didn’t…wasn’t there some thing with…shepherds & baby Jesus?  I wonder if that is explicit commentary on the ritually unclean.  Huh.  Oh well!

  • I personally take the stance that we should legalize all drugs, but I’m not dogmatic on the subject and recognize the limitations of getting social acceptance just to the decriminalization stage for public consumption.

    The Drug Warrior use of prison and rights denial as a social engineering tool among minorities is a rather worrisome thing.

  • friendly reader

    I guess the thing is I come into this as an East Asian Studies major knowing what opium did to China. Drugs (or at least narcotics) are something you don’t want to have in your society, their use does effect more than just the user, and people will not always make the right call without outside help. But our current system of trying to combat drugs completely fails and only hurts people, particularly (and intentionally) minorities.

  • Lori

    I actually suspect that privatizing the prison system has caused as much or more of our current problems as the Drug War itself has. No good can come from giving people a strong profit motive to put more people in jail.

  • Ann The Mad

    I’m interested — could you elaborate?

    To what extent was the opium problem in China of foreign origin — subsidized and distributed by Britain?

    The reason I’m curious is that I’ve always speculated that a lot of drug-related harm occurs at the early end of the adoption curve, when a new drug arrives in a community that hasn’t established norms and coping mechanisms and social restrictions around it.

    For example, the introduction of cheap gin in 18thC England was a massive public health issue with serious social consequences, as illustrated by Hogarth.. The repsonse over the next few decades wasn’t outright prohibition, but a combination of regulation and social changes (such as the rise of temperance culture).  The initial wave subsided, and gin-drinking became an became an endemic rather than epidemic problem, affecting a much smaller core group of people.

    I suspect that can’t happen if the drug is being introduced and propagated by an outside force that has an interest in preventing that kind of adaptation. Does that seem at all relevant to the situation that existed in China?

    That’s why, although I favor regulated legalization of existing drugs, I’m very, very wary about the possibility that legalization will lead to new and improved  recreational drugs appearing overnight. That never seems to go well.

  • Guest-again

    ‘Felons are not a “specific minority group.”‘
    Strange – the arrest/conviction/imprisonment statistics are stunningly weighted, unless one believes Americans are truly living in a post-racial society – something that I think the people doing the arresting, convicting, and imprisoning don’t believe for an instant, any more than that heavily weighted group of felons believe it. At least if my upbringing in Virginia is any indication of how a former Jim Crow state does things.

    This is from wikipedia –
    Basic background –
    ‘The racial composition of the US population as of 2008 was 79.79% European American (65.60% non-Hispanic and 14.19% Hispanic), 12.84% African American (12.22% non-Hispanic and 0.62% Hispanic), 4.45% Asian American (4.35% non-Hispanic and 0.10% Hispanic), 1.01% American Indian or Alaska Native (0.76% non-Hispanic and 0.25% Hispanic), 0.18% Native Hawaiian or Pacific Islander American (0.14% non-Hispanic and 0.04% Hispanic), and 1.69% Multiracial American (1.64% non-Hispanic and 0.05% Hispanic). 15.25% of the total US population identified their ethnicity as Hispanic.’

    Some more hard numbers specifically concerning those imprisoned –
    ‘According to the US Bureau of Justice Statistics (BJS) non-Hispanic blacks accounted for 39.4% of the prison and jail population in 2009.[27] Hispanics (of all races) were 15.9% of those incarcerated in 2009.[27] Hispanics comprised 16.3% of the US population according to the 2010 US census.[28][29] According to the Bureau of Justice Statistics
    from 2000 to 2008 the rate of prevalence of incarceration for blacks
    declined to 3,161 per 100,000 and the white rate slightly increase to
    487 per 100,000’

    Do note that rate of incarceration – basically, a certain group is 6 times more likely to be in prison than another group. And do remember, felons lose the right to vote – notice the disparity?

    And for some finishing information –
    ‘For men in their early thirties, African-Americans are about 7 times
    more likely to have a prison record than whites. They are more likely
    to have been in prison (22.4 percent) than in the military (17.4

    We discriminate against a group of people called felons by denying them the right to vote – and strangely, the group most suppressed in being able to vote is exactly the same group whose votes were suppressed for a century.

    But of course, felons deserve not being able to vote, right? At least one can at least pretend they aren’t an actually not so coincidentally selected group of people whose civil rights are being explicitly denied by the exact same mechanisms that had denied those rights previously.

  • One other thing.

    I wouldn’t be surprised if the high levels of homophobia anecdotally reported in the African American community point in a straight line to the prevalent use* of prison rape as a control tool inside and outside of prison.

    * Nobody will officially endorse it, but the authorities in charge of the prison system have been noticeably lackadaisical about enacting reforms that would seriously reduce incidence rates.

  • friendly reader

    Basically the long-term effects of narcotic use – they’re highly addictive, they make the people taking it lethargic, as people take them they want to take more, making them remain in lethargic states longer, resulting in them having a harder time keeping jobs, and all the money they did make they spent on opium rather than on something that supported the economy, etc. Opium dens had heavy economic effects on cities in China. Narcotics pack a wallop (if you’ve ever been on post-surgery painkillers you may have experienced it), and easy-access to them is bad idea. So even if we someday legalized heroin and other opium products, I really do believe we’d still need very tight restrictions on them.

    But you are correct, things were made far worse in China by the British Empire basically being a pusher. They were making a pretty profit off of it (they had a near-monopoly on its production) and didn’t want any limitations on its sale and use. Had China not been under that pressure they might have adapted, gradually. Of course, before the Opium Wars they had successfully prevented the stuff from even entering the country, so it’s hard to say what would have happened.

    And that’s where the “all” comes in: I think we should look at drugs one-by-one. Marijuana? Fine. Others? Consider them (honestly? narcotics are the only ones I’m particularly versed on). Provide more support for countering addiction (and more jobs in the inner cities), and stop turning addicts into criminals or treating ex-prisoners like they haven’t paid their time.

  • rizzo

    “Quite honestly, I was unable to reconcile my voting yes on Prop 8 with Jesus’ command to love my neighbor as myself.”
    I’m very happy this guy realized this his vote was wrong in light of the principles of the man/god he claims to follow.  I hope more people start seeing the light as he has…

  • I’m very happy this guy realized this his vote was wrong in light of the
    principles of the man/god he claims to follow.  I hope more people
    start seeing the light as he has…

    Given the person’s name (Elizabeth Esther) and picture on her blog, I’m pretty sure the author is a woman.

    I agree with your sentiments otherwise.

  • Vladimir Mac

    In reading the comments under those articles, and hearing from those against gay marriage in general, it’s interesting to see so many people defend what they say is the biblical definition of marriage as between one man and one woman, but I never see those people admit that the Bible clearly allows a man to be involved in more than one marriage at the same time, and — other than some small groups of fundamentalist Mormons — I’ve never heard any of them advocate allowing a man to be involved in more than one marriage at the same time (though a certain family values candidate for president has suggested allowing a married man to have a concubine).

  • Guest

    While the bigots are still out in force, more and more I’m seeing people being accepting and open to gay people in comments and such. The recent Marine kissing his boyfriend photo, for example, had a higher number of people making comments of the “good for them” and “how cute” variety on ABC News’ website than the “this is wrong” and “this is sick” variety (at least as far as I read into the comments). 

    Same with a recent story I read about how the Million Hateful Moms were trying to get Toys R Us to stop carrying the Archie comic with the gay wedding dudes on the cover. Most of the comments were pro-gay marriage, and the bigots were slapped down pretty handily. 

    I know it’ll never be perfect. I still know people who think interracial marriage is wrong. (Family, so I can’t just completely ignore them). But the tide is slowly turning. 

  • I’m not sure that “restrictions” would be the right way to frame it. Given the ways in which narcotics damage people, the real gains are to be made by reframing the “war on drugs” as a public health problem rather than a criminal one. We could focus on helping people damaged by drugs, rather than on using a medical issue like addiction as a way to convert classes of people deemed socially undesirable into a permanent disenfranchised criminal class.

    At the risk of being a little naieve, I suspect that if we took all the money we spend on the war on drugs, and funneled all of it into public health and rehabilitation programs to *help* addicts, we probably *wouldn’t* need legal regulations on drugs that go much beyond the legal regulations we already have for alcohol, tobacco, medicine, etc.

  • Lori

    Same with a recent story I read about how the Million Hateful Moms were trying to get Toys R Us to stop carrying the Archie comic with the gay wedding dudes on the cover. Most of the comments were pro-gay marriage, and the bigots were slapped down pretty handily. 

    Twitter’s recomendation algorithm sugggests that people who follow the Million (hateful) Moms that might also be interested in following Shirley Phelps Roper of Westborough Baptist haters fame. When Twitter is on to you it’s hard to hide how vile you are.

  • Anonymous

    I really get a laugh out of the Million Hateful Moms attack on JC Penney for hiring Ellen DeGeneres. I don’t know if it was intentional, but her JCP commercials do seem to subtly reflect the “controversy” of an openly gay spokesperson and times changing for the better. The new tag is “Fair and Square” and they feature “Ms. DeGeneres going back in time to a variety of eras to see whether befuddling return policies and pricing strategies have always been the norm” (as Ad Age puts it). I’m sure there’s no hidden message there, but the ads still made me smile when I saw them.

  • FangsFirst

    Just stay away from the cesspool of Yahoo comments.

    (one of numerous email accounts, and occasionally a story pops up and I make the mistake of looking at the comments)

  • Tonio

    Labeling interracial marriage as wrong is not only immoral but also confusing. How are these people even defining “wrong”? In the same sense in that it’s wrong to hurt a child? Or in the sense that it seems odd or strange to them? If they’re really morally offended by it, then I question whether they have a true moral sense at all.

  • BaseDeltaZero

    My theory on illegal drugs is to recategorize them as… well, drugs.  Use/possesion would not be criminal (though it would be grounds for rehab), but sale/distribution would be either an issue of criminal malpractice or (more likely) both that *and* distributing drugs without a perscription.

    Make them ‘legal’, in the sense that their existence isn’t criminal, but, essentially, they’ll never get past FDA approval.

    The problem with total legalization is that basically that’ll just allow Merck et al to start pushing drugs, and frankly, I can’t see how that’d be better than small relatively weak groups that can’t openly advertise their existence…

    I’m not a big fan of the theory of ‘legalize everything so the criminals can’t make money off of it’ theory… you have to make a stand somewhere, or you’ll quickly find yourself legalizing the slave trade (for one extreme example).

  • Dan Audy

     One thing about the ‘legalize everything so the criminals can’t make money off of it’ theory is that it is a major underpining of organized crime that provides a reliable and stable income flow for them but also gives them a certain amount of legitimacy and reach.  Most people don’t recognize that their buying pot is also supporting sexual slavery and it would be good if organized crime were more marginalized that currently.

  • P J Evans

     Sure, as long as tobacco is included. Because it should be in the same category as heroin (highly addictive, almost impossible to quit, and, in addition, scientists have discovered it carries a lot of pathogens picked up in the curing process, which is done in a warm, dark, humid environment).