I see that Indiana Attorney General Greg Zoeller has filed a “friend of the court” brief, urging the First Circuit Court of Appeals to overturn a lower court decision invalidating the “Defense of Marriage Act.” The court held that marriage is a state issue over which the federal legislature lacks authority.
I would have expected Attorney General Zoeller to applaud that ruling—after all, he has argued strenuously against federal authority in a number of other situations. He has even insisted that the federal government lacks authority to interfere with state decisions about Medicare—a federal program. Apparently, it’s okay for the feds to dictate state policies when he agrees with those dictates.
Can we spell hypocrisy?
It isn’t as if there is imminent danger of same-sex marriages being recognized in Indiana. Our appellate court has ruled that there is no state constitutional right to such marriages, and Indiana law has its own “defense of marriage” provision which was unaffected by the ruling.
Of course, the absolute absence of gay marriage in Indiana hasn’t kept the current legislature from reviving a proposed state constitutional amendment explicitly banning same-sex marriage along with anything “substantially similar” (whatever that means). This looks a lot like Oklahoma’s effort to prevent its courts from applying Sharia law—something exactly none of them were doing. Oklahoma lawmakers wanted to signal their hostility to Muslims, and these Indiana lawmakers want to signal their hostility to gays.
The truth of the matter is that the only way Indiana will ever get same-sex marriage is if the United States Supreme Court rules that the U.S. Constitution requires it—and if that happens, a state constitutional provision won’t be enforceable anyway. So reasonable people might wonder why our lawmakers are spending their time on nonexistent issues when we have so many real problems to address.
Continued tilting at this imaginary windmill wouldn’t much matter if it weren’t for the collateral damage the amendment would cause.
Indiana has been trying to recruit and grow high-tech employers—companies that are among the most gay-friendly, and that have significant numbers of gay employees. Passing an anti-gay constitutional amendment won’t exactly promote these economic development efforts. There’s also a concern that writing discrimination into the constitution—the first time a constitutional provision would be used to deny civil rights rather than expand them—sets a dangerous precedent. And far from “protecting” families, this measure’s vague language would make life more difficult for gay Hoosier families without in any way assisting heterosexual ones.
Efforts to improve the economy, grow jobs, streamline government and improve public education would actually help Hoosier families. But I suppose it is easier to pander to anti-gay sentiment than it is to improve life for all Indiana citizens.
On an unrelated note: This is my last column for the Indianapolis Star. I have deeply appreciated the comments and emails from readers over the years—pro and con—and invite those who wish to continue the conversation to do so at www.sheilakennedy.net.
In the wake of the horrific shooting in Tucson last month, PBS’ Mark Shields made an “only in America” observation.
“This is America, where a white Catholic male Republican judge was murdered on his way to greet a Democratic Jewish woman member of Congress, who was his friend. Her life was saved initially by a 20-year old Mexican-American gay college student, and eventually by a Korean-American combat surgeon, all eulogized by our African-American President.”
There, in a nutshell, is what most of us would consider the triumph of American culture—the fact that the nation has moved, however haltingly, toward a vision that allows all of us to be members in good standing of our society, equal participants in our national story, whatever our religious belief, skin color, sexual orientation or national origin. What makes us all Americans isn’t based upon any of those individual identities, but upon our allegiance to what I sometimes call “the American Idea”—a particular worldview based upon an understanding of government and citizenship that grew out of the Enlightenment and was subsequently enshrined in the U.S. Constitution and Bill of Rights.
American culture is not threatened by immigrants who come to this country because they find that worldview attractive, but it is threatened by an appalling lack of civic literacy.
One recent survey found only 36 percent of Americans able to correctly name the three branches of government. Other research has found that fewer than half of 12th grade students can describe the meaning of federalism; that only 35.5% of teenagers can correctly identify “We the People” as the first three words of the Constitution; that barely a quarter of the nation’s 4th, 8th and 12th graders are proficient in civics, with only five percent of seniors able to identify and explain checks on presidential power. I could go on. And on.
The consequences of this ignorance are profound.
Self-government requires a civically educated citizenry. When a nation’s citizenry is very diverse, as in the United States, it is particularly important that citizens know the history and philosophy of their governing institutions; in the absence of other ties—race, religion, national origin—a common understanding of, and devotion to, constitutional principles is critical to the formation of national identity.
Devotion, however, must be based on genuine understanding of the history and context of our constituent documents if it is to enable, rather than impede, deliberative discourse. When pundits and politicians make constitutional claims, citizens need sufficient education and knowledge to critically evaluate those claims.
Right now, Americans are embroiled in one of our recurring debates about the adequacy of public education. It’s a vital issue, but while we are addressing it, we need to recognize that deficits in civic literacy don’t just threaten democratic institutions. Such deficits have real and deleterious consequences for fields as diverse as science, religion, and public education itself.
Math and science are important, but creating informed, empowered American citizens able to recognize and resist demagoguery is even more so.
Where are all the high-school civics teachers when you need them?
During the past few weeks, we have been treated to an absolute bonanza of constitutional ineptitude: we’ve had Dr. Laura explaining her departure from radio as an effort to get her First Amendment rights back; continuation of the ugly, ginned-up controversy over Muslims building a community center three blocks from Ground Zero; and an equally retrograde proposal to eliminate portions of the 14th Amendment, among other embarrassments.
Dr. Laura (whose doctorate, we should recall, is in physiology—not logic, and certainly not law) seems to equate the disapproval of her sponsors with denial of her First Amendment rights. Someone should gently explain to her that the First Amendment, like the rest of the Bill of Rights, is a limit on government action. It prevents the government from censoring her. Unfair as it may seem to her, her sponsors also have First Amendment rights—and in this case, they have evidently decided to exercise them by disavowing her message.
That’s the problem with those darn constitutional rights—people who disagree with us have them too.
Aside from the southern Congressman who questioned whether Islam is “really a religion,” those who oppose allowing Muslims to build a community center and mosque three blocks from Ground Zero have generally conceded that the Constitution gives them the right to do so. Instead, they have fallen back on what First Amendment lawyers call the “heckler’s veto” argument. The “heckler’s veto” was most prominently used in the 1950s, during the Civil Rights movement. When Martin Luther King would ask for a permit to make a speech in a public venue, the city or town would argue that allowing the speech was likely to cause a civil disturbance and thus the permit should be denied in order to protect the public’s safety. Courts weren’t receptive to the notion that some people’s rights should be held hostage to other people’s hostility; nevertheless, opponents of the mosque argue that it is “insensitive” and “offensive” to build near the neighborhood where the Twin Towers went down (and just down the street from the Pussycat Lounge strip club).
When we come to proposals to amend the 14th Amendment, there’s good news and bad news. The good news is that some of our dimmer political actors have noticed that it exists. It wasn’t all that long ago that a Georgia governor denied that the Bill of Rights applied to the states—a rather clear signal that he hadn’t encountered this particular Amendment. On the other hand, there is something surreal about watching people who claim to revere the Constitution when their own rights are at issue blithely proposing to shred that document when other people are its beneficiaries.
It’s hard to know whether these folks are really constitutionally illiterate or simply playing cynical political games. As one pundit has wryly noted, there are two ways we can understand the meaning of the word “base” in the phrase “playing to the base.”
One of the most difficult constitutional principles to teach, for reasons I really don’t understand, is the rule that in order to be constituional, a law must be sufficiently precise to allow citizens to know what behaviors will be sanctioned. If a law does not meet that standard, we say it is “void for vagueness.” (This is the problem with so many “anti-pornography” efforts; one person’s porn is another person’s erotica, as Nadine Strossen once put it.)
I was going through a file earlier today, and came across an entry I wrote a couple of years ago for the Encyclopedia of the Constitution. My task was to define “civil liberty.” Sometimes, it’s good to remind ourselves what our civil liberties are–and why they matter.
Here’s what I wrote:
Civil liberty is the right of an individual to be free of unjustified government interference with his or her person, property, beliefs or decisions. In the United States, the Bill of Rights sets limits on the sorts of government interference that can be legally justified. Understanding what those limits are, why they were put in place, and how they compare to rights of citizens in other countries is central to understanding American civil liberties.
Those who drafted the nation’s foundational documents were profoundly influenced by the philosophy of the Enlightenment, especially the writings of John Locke; they believed that the state had a moral obligation to respect individual autonomy, defined as the right of individuals to set and pursue their own moral ends. Accordingly, our constitutional system begins with the premise that government is not entitled to interfere with an individual’s behaviors unless that individual is harming the person or property of a non-consenting other. This is sometimes called the “libertarian principle.”
The U.S. Bill of Rights protects fundamental civil liberties: freedom of speech and the press, freedom to assemble and “petititon the government for redress of grievances” (i.e., dissent), religious liberty, freedom from unreasonable searches and seizures, and a variety of other procedural protections that together constitute basic American due process guarantees. More recently, equal protection of the laws has been added as a fundamental right.
Civil liberties (and human rights generally) are based on the belief that individuals have inherent dignity and status, simply by virtue of being human, and that government has the obligation to recognize and respect that personhood. In the U.S. legal system, unlike some other countries, civil liberties are individual in nature. The American constitutional system does not recognize group rights; ethnic and other minorities do not have rights separate and apart from those enjoyed by individual members of the group.
At their base, civil liberties disputes all revolve around finding the proper balance between the power of the state and the right of individuals to live as they choose. This is primarily a procedural issue: who shall decide? Who, in other words, has the authority to make any particular decision, the government or the individual?
Citizens frequently fail to recognize that the essential characteristic of our constitutionally protected liberties is this restraint on the government’s power to decide certain matters, and they therefore fail to distinguish between the act of limiting government’s power and the endorsement of a particular outcome. When a court refuses to allow an agency of government to censor a particular book, for example, the court is not endorsing the content of that book. It is upholding the principle that citizens have a right to choose their own reading material, free of government interference. When courts refuse to allow official prayer in public schools, it is not because the judges are hostile to religion; it is because parents have a right to control the religious upbringing of their children, free of government interference. The emphasis is upon how decisions are made rather than what decisions are made. In the American legal system, good ends cannot be used to justify improper means.
The procedural nature of our constitutional system is often criticised by communitarians who believe that citizens should be more “embedded” in a shared moral framework. The negative nature of American civil liberties, where liberty is envisioned as freedom from government control, is also criticised by those who favor the addition of so-called positive rights, or entitlements, to our conception of fundamental rights, much as is the case with the U.N. Declaration of Human Rights and many European constitutions that give citizens a government-insured right to adequate housing, medical care or education. Whatever the merits or flaws of those arguments, our particular constitutional structure was built upon a commitment to individual choice and respect for the integrity and inviolability of the individual conscience. Partially as a result, America has one of the most individualistic cultures in the world, and our legal system both reflects and reinforces that individualism.
It is instructive to note that there was no disagreement between the Federalists and Antifederalists about the proper role of government and the nature of the so-called inalienable rights, or civil liberties, that each citizen was entitled to enjoy. Their great debate was not a dispute about the importance of guaranteeing individuals freedom from government interference; rather, these founders disagreed about the proper method of insuring that personal freedom. Antifederalist critics of the new constitution wanted a Bill of Rights, specifying the liberties that would be insulated against official action. Federalists like Alexander Hamilton, on the other hand, argued that the new national government was a creature of “delegated powers,” only, and that it therefore lacked any authority to invade personal liberties. Hamilton worried about the dangers of “enumerating,” or listing protected rights. He and others feared that the existence of a written Bill of Rights would lead future government officials to argue that if a right was not specifically listed, it was not protected. The compromise between these two arguments was the language of the Ninth and Tenth Amendments, sometimes called the “rights and powers” Amendments. Read together, they provide that enumeration of certain rights is not to be construed as denial of others, and that any powers not specifically given to the federal government remain with the states or the people.
Originally, the Bill of Rights restrained only the federal government. Many states continued to have “established” religions until the early 1800s, and continued to enforce a variety of other laws that were inconsistent with civil liberty. It was not until after the passage of the 14th Amendment, in the wake of the civil war, that the Bill of Rights would be “incorporated” into the 14th and made binding on all levels of government.
Civil liberties are not protected against private infringements. The Bill of Rights limits government only; unless there is “state action” (i.e., action by a unit or agency of government), there is no violation of civil liberties. Civil rights, on the other hand, are rights to be free of discrimination by private parties. Civil Rights are creatures of statute, not products of the constitution. The first federal law establishing a legally-enforcable right to be free of private discrimination in employment, housing or education was the 1964 Civil Rights Act.
When the constitution was first drafted, civil liberties were enjoyed by free white male property owners. Over the years, despite some “detours,” the American idea of liberty has expanded. Today, women, racial and ethnic minorities are entitled to the same fundamental rights as white males, and since the 1990’s, great strides toward equality have been made by members of other minorities, notably gays and lesbians.
