Neutrality isn’t justice, silence = death

Posted on March 18, 2021. Filed under: Civil Rights, Politics | Tags: , , , , , , , , , , |

Just when we thought we were done with our short series examining the Biden Administration’s January 20, 2021 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which you can find here on the official White House site, we get pulled back in.

Attempts to deny equality of opportunity by acknowledging racism do not die when an Order is rescinded. One proof is that the Iowa state legislature is working to incorporate the anti-justice language and intent of the Trump Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping), which we spilled so much ink on late last year. Here’s a report from Inside Higher Ed:

With very similar language to the Trump order, the Iowa bills prohibit race and sex “stereotyping” and “divisive concepts” in diversity training. Such ideas are that one race or sex is “inherently superior” to another, that the state of Iowa is “fundamentally” racist or sexist, and that a person, by virtue of race or sex, is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

Other prohibited concepts: that a person, based on race or sex, “bears responsibility for actions committed in the past by other members of the same race or sex,” and that anyone should feel “discomfort, guilt, anguish, or any other form of psychological distress” for similar reasons. Meritocracy and “traits such as a hard work ethic” cannot be described as racist or sexist under the bill.

The bills apply to public colleges’ and universities’ staff or student training, led by employees or contractors. Institutions may continue training that fosters a “respectful” workplace or learning environment for all.

You can revisit our series on the Trump order, where we explain how this language bars people from acknowledging racism by saying that doing so is racist–that calling out white racism against black people is, itself, racist because it identifies white people as “fundamentally” racist. It also firmly locates all white racism “in the past”, safely removing white people today from any association with it.

One quote in particular from the story on Iowa sticks with us:

Representative Sandy Salmon, a Republican, argued that there still “needs to be a paragraph in there about requiring a public institution of higher education to attempt to remain neutral on current public policy controversies.”

Neutrality. We understand the disequilibrium our nation is going through as it attempts its boldest reckoning with racism since the 1950s and 60s. We know how painful it is to everyone to disturb the equilibrium of an entire nation, to call a halt to business as usual, including all the coping mechanisms people have relied on for centuries to deal with and survive racism and sexism. That coping state is identified as neutrality, and it can seem like neutrality, a grey area between violence and safety, but it isn’t neutral. It’s charged with fear and hate. It’s the medium in which cells of injustice grow and multiply.

So there is nothing noble or helpful about calling for neutrality on “controversies” that are tearing our nation apart, and that we are finally stopping all the machinery to address and redress. It doesn’t “calm things down”. It only perpetuates the medium for injustice by refusing to call it out and destroy it.

First they force universities to go along, then K-12 schools, then businesses, then everything else. Neutrality isn’t justice, in Iowa or anywhere else. All of us have to stick with the exhaustingly difficulty work of derailing what is corrupt in our society and nation, and then, when all injustice is indeed safely “in the past,” we can figure out how to keep it that way.

There was a slogan back in the 90s amongst gay Americans fighting the unwillingness of the U.S. government–and most of society–to do anything to stop the AIDS epidemic.

Silence=Death was a quick, efficient way to get the message across that not talking about AIDS, or “gays”, was a way to guarantee that the death rate just kept rising. Gay Americans who had adopted the coping mechanism of silence about their sexuality, concealing it in some way, to some extent, in order to survive had to be mobilized for public protest, public political action. It was not easy. But momentum grew with the death rate, and heroic gay Americans put their lives on the line to stand up and demand equal medical treatment and attention. It was dangerous, it was hard, it put all of American society into disequilibrium as “mainstream” America was forced to acknowledge gay people as human beings with equal rights (and as people–regular people who had jobs and pets and went on vacation and hated broccoli, etc.).

Neutrality in that situation was not the answer. It’s never the answer when justice is at stake. We all need to revive this slogan for today. Find a new shape to replace the pink triangle that represented homosexuality and get those t-shirts and buttons out there on every American who knows that “neutrality and silence for all” is not our national slogan.

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Gay marriage defeated in Maine

Posted on November 4, 2009. Filed under: Civil Rights | Tags: , , , , , |

The voter referendum held in Maine on November 3, 2009 on whether to revoke the law recently passed there allowing gay Americans to legally marry was marked by claims that the people—rather than the courts or the state legislature—should decide whether gay people should marry. After state judiciaries in Iowa and Vermont in April 2009 legalized marriage for gay people, the usual outraged claims that the judiciary had gone too far filled the air. “We’re not governed by the courts,” sputtered one angry man on the radio.

This basic misunderstanding of the U.S. government leads me to repost this article, originally written in 2008 when California’s courts ruled on marriage for gay people. It applies to Maine, Vermont, Iowa, California, and any other state whose court decides in favor of allowing gay people to marry:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen. In the case of Maine, someone claimed that “using the courts as a battering ram to push gay marriage will only turn people against it [gay marriage].” The same could be said—and was said—about desegregation of schools. Popular approval is not the sole measure of a law in a democracy; it simply can’t be.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

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Gay marriage, thanks to our courts

Posted on April 10, 2009. Filed under: Civil Rights | Tags: , , , |

Decisions in Iowa and Vermont this week legalizing marriage for gay Americans spawned the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” sputtered one angry man on the radio.

This basic misunderstanding of the U.S. government leads me to repost this article, written last year when California’s courts ruled on marriage for gay people. It applies to Vermont, Iowa, and any other state whose court decides in favor of allowing gay people to marry:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

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