The Pace of Progress

Civil rights activists often disagree over tactics. That was (and is) true of the African-American civil rights movement, and similar disputes characterize those working for equal rights for women, Latinos and other minorities. So it should not surprise anyone that gay rights activists often disagree about where resources should be deployed and when, or whether to be confrontational or to work behind the scenes.

There aren’t “good guys” and “bad guys” in most of these debates—just idealistic people of good will who have different ideas about the best way to proceed.

 The most recent evidence of such disagreement was this fall’s March on Washington. It is no secret that many people in the so-called “gay establishment”—HRC comes to mind—were less than thrilled at the prospect of diverting energy and resources from places like Maine, where the recent recognition of same-sex marriage faces a Proposition 8-like repeal effort. (HRC did get on board when it became obvious the March would be held, but its early reluctance was hardly a secret. Barney Frank never did support it.)

At the March itself, another fault-line became evident.

Many members of the gay community are clearly angry that the Obama Administration has not yet acted on several promises to advance equality for gays, lesbians and transgendered people. A number of those who delivered speeches at the March made their displeasure very clear. The general sentiment was: yes, you talk the talk. But where’s the walk?

Others–generally those who have worked on equality issues for many years and who are all too familiar with the political barriers that have to be dealt with–believe that  actually achieving these changes is more complicated than the critics seem to understand. They are impatient with impatience.

As a recovering lawyer, I am painfully aware that legal changes almost always lag cultural ones. That’s because legislatures and even the courts (angry accusations about “socialist” policymakers and “imperial” courts notwithstanding) rarely act until something akin to a social consensus emerges. Nor can a President unilaterally make most changes. And even when a President can act without Congress, through Executive Order, there are legislative consequences to be expected.

The impatience displayed by many of the Washington marchers is understandable. It’s like being told that “if you just stay in the back of the bus a bit longer” America is more likely to get health care and environmental protection. Why should GLBT rights be held in thrall to other goals? What’s the point of having political capital if you don’t spend it?

My own analysis is somewhat different. Barack Obama is one of the most strategic politicians to come along in my lifetime. I believe him when he says–as he did at the HRC dinner–that he is committed to achieving equal rights for the GLBT community. And I believe him when he says he will do so in his first term.

There are two things any constituency needs from its political champions: sincere commitment and the strategic smarts to actually get something done. I think Clinton had the commitment; but he couldn’t get it done.  He was ahead of his time, for one thing; the culture was not quite ready. But he also made a tactical error; his approach to the issue of gays in the military was clumsy and badly timed. I think Obama knows how to get things done–even very difficult things.

Basically, Obama is asking the gay community to trust him.

It’s easy for me to say, of course–I’m not gay. But I DO trust him. And those of my friends who’ve been long-time activists on behalf of GLBT  rights, people who know how tough these fights still are, trust him too.

We may be wrong–only time will tell. But when Obama says he’ll get it done during his first term, I believe him.

Bingo

One of the bloggers I read regularly is Ed Brayton, whose “Dispatches from the Culture Wars” takes on hypocrites of both the left and right. This analysis of charges of “media bias” is an example of his generally on-target commentary:

Let’s get something straight: there is no such thing as objective journalism. Every single journalist brings his or her own preconceptions to everything they do, including me. There is no point in pretending otherwise. Just own up to your biases and wear them on your sleeve for all to see and readers and viewers can take that into account. All that really matters is accuracy. If bias leads to inaccuracies in the reporting, then point out the inaccuracies. If it doesn’t, then accusations of bias are meaningless.

But the sheer chutzpah of conservatives, of all people, feigning outrage at politicians criticizing news outlets? You have to be joking. Bashing the media has been one of the most important strategic elements of conservative politics for decades. Media bashing is not merely a staple part of conservative thinking, it’s so deeply ingrained that it’s almost a reflex reaction for most right wingers.

And that’s the whole point of the strategy, to get their followers to instinctively react to any news that is inconvenient for them by dismissing it as another example of liberal media bias. It’s an inoculation against reality and it is very, very effective. Hearing conservatives whine about media bashing is like hearing Paris Hilton whine about Lindsey Lohan being shallow. The pot and the kettle might as well die in a mutual murder/suicide pact at that point.

“Morality” Policies and Political Realities

In Indiana, I cannot buy wine (or any kind of liquor) if I go to Costco or my local grocery on Sunday. Since–like most women in America today–I work during the week, Sunday is my preferred day to shop. Thanks to the Indiana legislature’s determination to protect my morals and their pocketbooks, I have the choice of making an extra trip, or changing my preferred shopping day, in order to buy wine.

As a matter of public policy, this is insane. I do not drink less because of this policy (actually, being a woman of a “certain” age, I pretty much limit my imbibing to one glass of red wine with dinner anyway). My dinner party guests are not deprived of a nice vintage due to this policy. It is simply inconvenient and annoying.

Periodically, there is an effort to change the law that forbids Sunday sales by groceries. We are seeing such an effort now, with advocates of change pointing out that we can drink at restaurants or bars on Sunday, so it seems silly and inconsistent to prohibit the purchase of spirits at the grocery.

What are the policy arguments being made by those defending the status quo? According to my morning paper, those arguments are:  1)Hundreds of neighborhood liquor stores might go out of business if groceries are allowed to compete. 2)There will be more drunken driving. 3) Remember the Sabbath.

Let’s take this one at a time.

  • If liquor stores cannot compete, then they should be allowed to fail. It is not government’s job to protect them, just as it isn’t government’s job to protect the corner hardware store from Lowe’s.
  • I hate to point this out, but the prediction that drunkenness, or drunk driving, will increase assumes that no one is drinking at those restaurants and bars, or buying enough liquor on, say, Thursday, to last until Sunday. This assertion is clearly not grounded in logic. Or reality.
  • Sunday isn’t MY Sabbath, nor is it the Sabbath of 7th Day Adventists, or atheists, or many others. And even if it were, the Establishment Clause prohibits the use of government to advance religion.

Of course, this was originally ALL about “it’s the Sabbath.” It was about reminding us heathens that this is a Christian (Protestant) Nation, thank you very much.  Most states have moved beyond this; not Indiana. Here in the Hoosier state, it has become a source of campaign cash from the liquor store lobby for those politicians willing to protect those stores from competition by making my life just a bit less convenient.

I’m sure they consider it a fair trade-off.

Defining Our Terms

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.

 

 

The Big Question

As usual, E.J. Dionne poses the critical political question: will the young people who voted overwhelmingly for Obama when he represented hope and change stay around to support him–and the Democratic party–now that the hard work of governing has highlighted philosophical and tactical differences of opinion on how best to proceed?

Celinda Lake, a Democratic pollster, offered a straightforward formula: “When Republican voters and older voters get angry, they vote,” she said. “When younger voters get angry, they stay home.” Thomas Bates, vice president for civic engagement at Rock the Vote, a group that mobilizes young Americans to go to the polls, shares Lake’s worries. “For people who were energized in 2008, it was a time of hope and optimism,” he said. “And when you get to the brass tacks of governing, the atmosphere in the process of legislating has become poisonous. That makes political engagement as unappealing as possible.” More than is often appreciated, the electoral revolution that brought Democrats to power was fueled by a younger generation with a distinctive philosophical outlook. Put starkly: If only Americans 45 and over had cast ballots in 2008, Barack Obama would not be president.