Civil Rights

Civil Rights in the Toilet

In his apotheosis of the American experience, historian Daniel Boorstin marveled at how our nation “democratized the bathroom.” On March 23rd of this year the state of North Carolina took a different tact. The General Assembly passed the so-called Public Facilities Privacy and Security Act. Governor Pat McCrory subsequently signed it into law. Ironically, a measure designed to foster “security” has germinated much insecurity in the Tar Heel state due to the controversy it engendered.

It seems odd to compare this statute to the Emancipation Proclamation, but it does share an unusual similarity. It’s one of the most discussed, but little read documents in American history. To clarify its content: it codified that in all public buildings in North Carolina a person is required to use the bathroom of his/her “biological sex.” The statute defined this gender as the one “stated on a person’s birth certificate.” An individual who violates the law is not subject to arrest, however. It is a civil act, not a criminal one.

This makes the outcry against the law seem disproportionate. In civil rights terms, it’s certainly no Dred Scott decision. It doesn’t impact people on the scale of the Boston bussing desegregation ruling of 1974. When one explores the matter more fully it does lead to some troubling observations.

The law’s reference to “public buildings” applies to schools. It seems to me this is where the main impact of this ruling will fall. Transgender teens who’ve been living openly as one gender will now be forced to use the same locker rooms and rest rooms as the gender on his/her birth certificate. One has to irreverently salute the North Carolina General Assembly for this one. They found a way to make the most awkward years of a transgendered person’s life even more uncomfortable. That’s not something any legislative body could accomplish.

A number of entertainers have expressed their disdain for this law by cancelling gigs in the state. Bruce Springsteen and Ringo Star have refused to play there. Bryan Adams won’t appear in Mississippi because of a similar law passed in that state. Jimmy Buffett has agreed to perform in North Carolina, at least for now. He acknowledged future shows will be contingent on “whether that stupid law is repealed.”

What I find most interesting about this list of luminaries is that only two of them are American; and of them, one is currently going to perform there. This doesn’t surprise me. As a society Americans’ commitment to civil rights has been, well, an abomination.

Many no doubt remember from high school history class the so-called “Wormley Bargain” that ended Reconstruction. After a contested election, Democrats and Republicans struck a deal. The GOP ended up with the Presidency and the Democrats got the end of military rule in the South. The Federal Government would no longer enforce civil rights laws. This resulted in nearly a century of lynching, segregation and peonage.

It took the activist nature of the Warren Court to begin reversing this situation. Let us not forget that the decision in Brown v Board of Ed was not well received in 1954. Even the President said he wished they hadn’t ruled in that way. (Eisenhower thought the South would close their public school systems. He suspected they’d have churches set up their own private educational institutions.)

Three years later Senate Majority Lyndon Johnson utilized a great deal of political wizardry to get the first piece of civil rights legislation passed since Reconstruction. Even contemporaries knew that as a symbolic measure, the 1957 Voting Rights Act lacked substance. The 15th Amendment already guaranteed all men the right to vote in 1870.

Then there’s the apathetic attitude most Americans take towards the shambolic “War on Drugs”. It’s led to the abnegation our Constitutional rights, especially the Fourth Amendment. These days almost any person who wants a job is subject to drug testing. It ensures that any individual suffering from addiction will be unable to secure legitimate employment. This limits their options to either working in the shadow economy or living on the street. Thinking of this minority, I recall Jesus’ words, “Whatever you do the least of my brothers, you do unto me.”

I recently spoke with an acquaintance regarding civil rights. This person doesn’t have any particular interest in the subject. I said, “It’s interesting that today people look back at the civil rights movement, shake their heads and say, ‘I can’t imagine living in a world where people discriminated against others because of someone’s race, creed, color or gender. That’s just stupid.’” I went on to say, “Today the new civil rights frontier involves lesbian, gay, bi-sexual and transgender issues. That makes the same people feel uncomfortable about the LGBT community having the same rights as the rest of us.” My interlocutor looked at me and smiled. “They’re still human,” he said.

I’ve made many negative observations regarding America’s civil rights history. I’m going to conclude with a positive one. Many people don’t realize that the most lucrative industry this nation ever produced was slaveholding. This country chose to abolish slavery not for cynical selfish reasons. We ended this abhorrent practice because it was right. Let’s draw on that example and show our support for our friends in the transgender community. We must facilitate their securing democracy in the bathroom. It’s the right thing to do.

 

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Wedding Reception

A sense of satisfaction overwhelms me when a government employee goes to jail for failing to execute her tax payer entrusted duties. That’s under normal circumstances. The recent events in Rowan County Kentucky were anything but normal. For the first and probably only time, I didn’t experience that gratification. Like many, I felt a deep sense of revulsion over Kim Davis’ decision to serve as a law answerable only to her. My contempt for those who supported her exceeded even that. To hear individuals cast her in the role of a Martin Luther King, Jr. to the Supreme Court’s Bull Connor makes a mockery of the Civil Rights Movement.

Those in opposition to freedom of marriage couldn’t have selected a more unlikely champion of its sanctity. Ms. Davis is, after all, on her fourth…so far.

A few weeks ago she decided to switch political parties after 32 years. Her most recent political campaign for Rowan County Clerk took place less than a year ago. This behavior raises questions as to just how committed she’ll remain to her current principles.

I’ve always been intrigued by those who argue that gay marriage will “change the traditional view of marriage.” The so called “tradition” has been rather fluid throughout history. In their delusional antediluvian “Leave It to Beaver” view of America some lose sight of that. They also selectively forget that the “traditionalism” of the 1950s metamorphosed into the counter-culture of the 1960s in less than a generation. Why then did a time so idyllic, become so turbulent so quickly?

For centuries procreation served as marriage’s exclusive purpose. Until the advent of the Industrial Age, people inhabited agrarian societies. Children provided a much needed labor force for working the fields from dusk until dawn. For those select fortunate enough not to perform manual labor, the institution served as a means of political union between powerful families. The concept of a marriage based on love is a very modern phenomenon. If anything, gay marriage is a logical outcome of this contemporary development.

I’ve often observed, “Until homosexuals have the right to be as miserable as we heterosexuals, there can be no equality between us.” I do have to add one addendum, though. When I’m on my honeymoon with the woman of my dreams: knowing that gay couples can achieve the same level of happiness and fulfillment in their lives won’t diminish my enjoyment in any way.

But this isn’t about marriage or who should have the right to partake in it. Myriad legal scholars have opined on the speciousness of Ms. Davis’ actions. In her role as Rowan County Clerk, her job is to certify that those filing for a marriage license have fulfilled the statutory requirements established by the State of Kentucky to receive one.

I would challenge anyone who asserts that an elected official is entitled to not execute her responsibilities because she either doesn’t agree with the law or like it. If one believes that, one must also respect the views of those clerks who refuse to provide a dog license because they loathe Poodles. Would one agree that the DMV can refuse to grant a driver’s license to those with foreign cars?

If any elected official feels that the statutes she’s elected to uphold violate her principles, she should work within the system to get them changed. Should that not be possible, the only honorable option remaining is to resign. Ours is a nation of laws, not opinions.

We’re all familiar with landmark events of the Civil Rights Movement such as the March on Selma, the “I Have a Dream” speech, and school desegregation. A number of years ago I read Gene Roberts’ and Hank Kilbanoff’s Pulitzer Prize winning history The Race Beat. The book focused on Southern reporters and the perils they faced in writing about the Civil Rights Movement. Had it not been for them getting the story out, the events I cited wouldn’t have had the same impact. It gave me a whole new appreciation for all of those who participated.  Those people were true American heroes.

Alas, Ms. Davis is no hero. That won’t stop some from depicting her as such. For those who insist on doing so, I have a suggestion. Why not place effigies of her where they will do the most good? How about placing her likeness with monuments dedicated to other paragons of principle from America’s past? Some appropriate locations that come to mind would be next to those images of Jefferson Davis, Nathan Bedford Forrest or the carving at Stone Mountain.

Political Commentary – March 21: Unhappy Anniversary

This March 21st marks the saddest anniversary in the history of the American experience. On this date in 1989, the Supreme Court ruled that the protections guaranteed all Americans in the Constitution don’t apply to us. The Court handed down its infamous opinion in the National Treasury Employees Union v. Von Raab case. This ruling served as the catalyst for mandatory drug testing.

I’ve always been intrigued by this decision. We Americans pride ourselves on our “exceptionalism.” As President Ronald Reagan, the pioneer of governmental work place drug testing, once opined: America stood as a “shining city on a hill.” When I hear stories about people being forced to urinate on demand in front of others, doctors and HR professionals serving as unlicensed agents of law enforcement, and Americans being forced to prove their innocence without the aid of an attorney I have my doubts. In the latter case, it’s especially egregious that people are threatened with loss of their livelihoods if they attempt to assert their Fourth Amendment right against “unreasonable searches and seizures” WITHOUT EVEN BEING ACCUSED OF A CRIME.

The fact the Supreme Court expressed this sudden abnegation of the concept of privacy befuddles me. In 1973 it ruled that a woman had a solemn right to privacy if she desired an abortion. Sixteen years later it issued another decision stating people lack a right to privacy if they would like a job. I don’t understand the reasoning here, but, then again, I’m not an attorney.

This decision allowed for a new series of disturbing tactics America’s so-called “war on drugs”. I recall reading Primo Levy’s account how guards would force concentration camp inmates to urinate in front of them. In German society at the time, doctors worked as agents of the State to eliminate undesirables. While Americans love our “Happy Hours” we hold a special distain for drug addicts; at least the ones not working in the entertainment industry or playing professional sports. I’m not placing drug testing on par with the Holocaust, but the eerie parallels are difficult to discount.

It’s even harder to ignore Americans’ cavalier attitude towards this erosion of Constitutional protection. Many people argue that drug testing makes society “safer.” I reply that the two most horrible expressions in the English language are “consumer protection” and “public safety”. They can be used to justify anything. Benjamin Franklin once wrote, “He who would sacrifice liberty for security deserves neither.”

I always cite Justice Antonin Scalia’s dissenting opinion as one of the best commentaries on civil rights. It belongs in the same category of great American orations such as “The Gettysburg Address”.

There is irony in the Government’s citation, in support of its position, of Justice Brandeis’ statement in Olmstead v. United States,277 U. S. 438, 277 U. S. 485 (1928) that “[f]or good or for ill, [our Government] teaches the whole people by its example.” Brief for Respondent 36. Brandeis was there dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example of vigor and enthusiasm in combatting crime, but condemning its example that “the end justifies the means,” 277 U.S. at 277 U. S. 485. An even more apt quotation from that famous Brandeis dissent would have been the following:

“[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”

Id. at 277 U. S. 479. Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us — who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

(Retrieved from https://supreme.justia.com/cases/federal/us/489/656/case.html#679 3/21/15.)

In his “Farewell Address” George Washington warned that America “should not go abroad in search of monsters to fight.” Recently we engaged in an effort at nation building for a society that hadn’t had “freedom”, “liberty” or “democracy” in over 6,000 years. Instead of trying to turn the Middle East into the paragon of Jeffersonian Democracy, we should focus on assuring our own liberty here at home.