Battle for Modernity

HourglassRecently, Linda Greenhouse wrote commentary about two pending Supreme Court cases: Sex After 50 in the Supreme Court, November 26, 2015. Along the way, she paid homage to Justice Stevens’ 1989 statement, “Our jurisprudence, however, has consistently required a secular basis for valid legislation.” Her conclusion:

Yes, there is a fight over birth control that has never really ended, and a battle over abortion that erupts anew in every election cycle. But what the Supreme Court may or may not grasp is that it has on its hands something deeper yet: a struggle over modernity, a battle for the secular state in which women can make their choices and design what Justice Ginsburg calls their life course, free of obstacles erected by those who would impose their religious views on others and who find in recent Supreme Court decisions encouragement that this time they might get their way.

It is indeed amazing that 50 years after Griswald vs. Connecticut established that American citizens may have access to birth control and forty-two years after Roe v. Wade, the State of Texas has forced its women back to self-induced abortions and secular employers are allowed to deny insurance coverage for birth control prescriptions. Both of these are “theologically based” and, thus wrongfully law.

This struggle for modernity is political, not simply legal. One of our major political parties has been captured by religious political extremists who are fighting to impose their will on their fellow citizens. A politician of that party saw this coming decades ago when he said in a speech on the U.S. Senate floor:

I’m frankly sick and tired of the political preachers across this country telling me as a citizen that if I want to be a moral person, I must believe in “A,” “B,” “C” and “D.” Just who do they think they are? And from where do they presume to claim the right to dictate their moral beliefs to me?
And I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate. I am warning them today: I will fight them every step of the way if they try to dictate their moral convictions to all Americans in the name of “conservatism.”

— Barry Goldwater, September 16, 1981

But the Republican party gave in. Apparently in its greed to hold power, the Republican Party does allow the “preachers” to dictate its votes in Congress, in the State legislatures, and in the selection of judges. The power it has gained is inherently limited by the depth of the religious base. Unless extreme measures are taken, that religious base will wither with age and the repulsion of the majority. But extreme measures have been taken in the gerrymandering of our legislative and Congressional Districts. At least one of their leading candidates seems to advocate a police state with special IDs for suspects. It seems unlikely that the most extreme measures will come about, but in the early-1990s, who would have thought we would see states which are in control of these extremists closing abortion clinics and owners of secular enterprises allowed to impose their religious beliefs on their employees (Hobby Lobby). We must be active and not passive in the face of the “preachers” push.

I find it sadly ironic that a political party that was born of the progressive notion that the U.S. Constitution should not protect slavery has been captured by such oppressors. The emergence of the Republican Party elected Lincoln and led to the enactment of three major Amendments to the U.S. Constitution that have evolved to guarantee freedom and equality for many. Yet, somehow, one hundred years later, the party was captured by opponents of this arc of history.

Reagan did not overtly preach most of the time, but he caved to the preachers in all of his judicial appointments after Sandra Day O’Conner. We are just now beginning to see the restoration of a secular judiciary.  Control of the judges at all levels of the federal system and control of state governments must be the battle cry of Democrats in the next election. It’s easy to win a Presidential race in the current climate; convincing voters to care about the down-ballot races is harder.

Political discussion these days often uses the words “progressive” vs. “conservative.” I think it more appropriate to call the sides “Modernists” vs. “Regressives.” The Modernists seek to preserve society’s progress and make further advances for the general welfare. The Regressives are simply twisted: They have a vision of an ideal past that never was and wish to return to it – an impossibility. A return to the past is a return to oppression not freedom.

I’m an optimist and believe that the struggle for modernity will ultimately prevail. But the road is tragically long with too many victims.

On Mistakes — and one in particular

April 1865  book coverThe historian, Jay Winik, in his book April 1865 argues that the manner in which Grant and Lincoln allowed Lee to surrender “saved America” — at least from several years of guerrilla warfare.

Unfortunately, by giving the Confederate States the illusion that their cause was honorable — when it was, in fact, traitorous and immoral, the way the war ended has led to 150-plus years of murder and hate. Yes, it’s easy to look back at the leaders in history and say they shouldn’t have done what they did. That their short-term vision cost us too much.

But, let’s not just blame them. Let’s now take the hard step and call the Confederate cause what it truly was: A traitorous rebellion against the United States of America, which was fought to preserve an immoral institution. There is no honor there. That must be repeated over and over for a few decades — at least a generation. Just as Hitler’s flag and the cause of Nazism were degraded after the 2d World War, so must the Confederate cause and flag be dishonored — even at this late date.

The leaders in 1865 may have made a mistake. We don’t need to keep perpetuating it.


Memorial to Decoration Day

Roses in CemeteryWhen I was young, Memorial Day was quite different. This was after the days when everyone walked 10 miles to school no matter what the weather, but we were still in the era of black and white TV where the test pattern came on after the 10 o’clock news. Though I now live in Flagstaff, Arizona, my recollections are from Iowa, where I grew up. Somehow, I think the way things were observed in Iowa were not much different from in Flagstaff in the 1950s.

One way in which Memorial Day was different is that every adult called it Decoration Day.  Another difference is that it was not always on Monday as part of a three day weekend. It was on May 30, no matter what day of the week that happened to be. (The change to the last Monday in May happened in 1969.)  May 30 came at a convenient time of year to take a day off in Iowa since the crops were in (meaning corn and soybeans were planted) and it was usually before the first round of hay baling (farmers tried to get three in each summer/fall in order to keep the cattle in hay during the winter).

So, everyone dressed up as though it were Sunday and got in the car and visited cemeteries. Sometimes, someone would go out to a nearby cemetery the Sunday before the actual holiday so the graves would be decorated before anyone arrived on Memorial Day – there was often a little competition about the most elaborate decoration.

In our family, Decoration Day had little to do with military honors. It was a day to remember the grandparents and others who had died by decorating their graves. By the time we finished the circuit of graveyards (first picking up an aunt and uncle or two to ride along), we may have put over 200 miles on the car at an average of 40 miles per hour on the narrow two-lane roads. We started early and got home long after dark.

Along the way, we looked forward to each cemetery to come because it meant getting out of the hot (no auto air-conditioning then!) car to run around under the shade of the big old trees surrounding the graves. We also learned a lot about our families. All the grandfathers had come directly from Germany to Iowa to claim and farm new land, and to avoid the Kaiser’s military draft. One of them had been born in New York harbor and was thus a U.S. citizen though no one else in his family was. The origin of the grandmothers was a bit less clear, but at least one of them was German since that’s the language she spoke at home. There were also a few of their children buried nearby – still-born babies and victims of life on the plains without the miracle of antibiotics. That sort of thing was much more common in the late 19th and early 20th Centuries, and the evidence and history lesson was evident on the ground around us on those Memorial Days.

I was off to college by the time Congress changed Memorial Day to just one of those Uniform Holidays conveniently always located on a Monday to make a nice three-day weekend. Somehow, I think we’ve lost something important to gain these mini-vacations.

©Ann Heitland 2007, then published in the Arizona Daily Sun as Coconino Voices and on Active Rain.

Obergefell: A Personal Take on the History of the Marriage Cases

Red Equality SignMost of you will hear snippets on the radio or see a headline. You’ll see a few comments or profile picture changes on Facebook.

Some of you may think, “Why are we even still talking about this?” Others may say to themselves, “That’s a very sad story;” and then go about their business of the day. Some will be angry that the government enforcement of their religious beliefs are about to be “discarded on the ash heap of history,” as one Pennsylvania judge said last year.  Others may not know what I’m writing about at all – please read on if you don’t and if you care.

Obergefell is the guy who flew from Cincinnati to Maryland in a medical transport plane to marry his long-time partner who was dying of Lou Gehrig’s Disease (ALS). The partner, John, is dead. Obergefell would like to be listed as his husband on the death certificate but cannot be because Ohio, where they lived together and where John died, does not recognize gay marriage. This is one of the petitions before the U.S. Supreme Court tomorrow along with other sad stories of discrimination.

I’ve been putting on a happy face about these cases for a lot of years. I am happy with the Windsor decision (2013) and with many of the opinions that I read in the ensuing years. Today, I’m here to say I’m not really happy. I’m angry. It’s just not pleasant to sit and listen to people debate my life, but that’s what I’ll be doing again tomorrow.

The Supreme Court doesn’t allow live broadcast of its hearings. There will be blogging and tweeting and a recorded tape will be released some hours after the arguments end. The courtroom is actually quite small. There is more seating in most U.S. District Court courtrooms than in the U.S. Supreme Court. People care so much about Tuesday’s arguments that the line to get in started to form at 6:00 a.m. on Friday. Those folks staying in line are quite weary by now. I’m weary, too. Along with being angry.

Here are a few things I’ll be remembering tomorrow as I read the live stream blog of the Supreme Court arguments and throughout the coming months as we wait for the June decision:

  • October 10, 1972: I’ve been in law school for less than a month. I’m 22. The U.S. Supreme Court issues an order in Baker v. Nelson declaring that Minnesota’s denial of a marriage license to two men does not “present a substantial federal question.” I’m scared.
  • A snowy Sunday morning in the 1970s: I’m reading the papers on the couch with my lover. We are a couple of young professionals in an apartment off Lincoln Park in Chicago.  If it weren’t snowing, we’d probably be golfing. I saw an ad for a new golf course development in a suburb and I said, “Let’s run out and look at this – maybe we can buy a house there!”  She said, “HAVE YOU LOST YOUR MIND?” We even discriminated against ourselves in the 70s. I’m sad.
  • June 30, 1986: I’m a partner in my law firm and living with my future wife and our two teenagers. I pick up the Chicago Sun-Times as I walk to my evening train and read that the U.S. Supreme Court in Bowers v. Hardwick has upheld the conviction of a man for having sex with another man in his own home. I sit stunned as the train makes its way north to my home in Evanston, which doesn’t feel quite so safe anymore. I decide that it is past time for me to become active around the issues of gay rights. Over the next years, I serve on the board of a political action committee and help pass the Chicago non-discrimination ordinance.
  • I sit in a partners’ meeting in 1989, the lone female in the room of about 100. The young men are fighting with the old men about restructuring our firm’s health insurance policy as it relates to the cost of dependent coverage. The night wears on and finally I’m fed up. My future wife has just left her employer to start a private practice and she has no health insurance. I stand up. I say, “I’m tired of paying for health coverage for all of your wives and children while you are not paying for mine.” Eighteen months later, my law firm becomes the first in Chicago to provide health insurance to “domestic partners.” We pay federal taxes on the value of that insurance, unlike my heterosexual partners.
  • It’s 1992. I’m sitting in my office with an ACLU attorney discussing an employment discrimination case we are handling together. Our discussion turns to a similar case developing in New Jersey where a man has sued the Boy Scouts for expelling him after he revealed he was gay. The LAMBDA attorney handling that case was pushing the GLBT community to move away from emphasizing employment cases toward suing for the right to marry. My ACLU associate thought that notion insane. He argued it would create a tremendous backlash. I sided with Evan Wolfson’s view that we had to change the law not just to change the law but to use the legal change to change society’s views. Seeking the right to marry — showing the nation who are families are — was a more effective way to accomplish that than a series of employment and housing discrimination cases. Evan Wolfson lost his Boy Scout case in a 5-4 decision before the U.S. Supreme Court in 2000 but went on to found the LAMBA Freedom to Marry Project in 2001. LAMBA attorneys are the lead attorneys for Mr. Obergefell before the U.S. Supreme Court tomorrow.
  • Shortly after that office conversation, I got a call with a request that I prepare an expert witness for testimony in a case brought in Colorado to challenge a voter-approved amendment to the Colorado Constitution. The law would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize homosexuals as a protected class. I was swamped at the time so I enlisted an excellent associate in my firm to assist. As usual in these situations, she did most of the work. Still, I had the privilege of meeting the witness, a history professor at the University of Chicago, and learning more about GLBT history and oppression than I ever imagined. He testified in Romer v. Evans, which went our way in the U.S. Supreme Court in 1996. I’ve been delighted to read his research cited in the marriage cases of recent years. Romer was the beginning of the end for opponents of equality for GLBT people. Nineteen years after this beginning, we are still fighting and there will be many battles ahead. Don’t tell me that this “sea-change” has come too fast, Justice Ginsberg.
  • I breathed a sigh of relief in 2003 when Lawrence v. Texas expressly overruled Bowers.
  • We lived through the ups and downs of marriage in Hawaii, of Proposition 8 in California, and through state-by-state battle around the country. A few months after our marriage in California in 2008, we celebrated a win in the Iowa Supreme Court (yes, Iowa, my home state).  Finally, we celebrated the downfall of Clinton’s embarrassment, the Defense of Marriage Act, in Windsor in June 2013.

Since Windsor, we’ve watched lower court decisions roll out in our favor at a tremendous pace. However, the Sixth Circuit Court of Appeals held in a 2-1 decision that courts should not decide whether states are required by the Equal Protection Clause of the U.S. Constitution to issue marriage licenses to same-sex couples. These two judges think that the right to marry should be governed by political forces in state legislatures and by voter referenda. That’s the first question before the U.S. Supreme Court tomorrow. If they discard that tired argument, it gets complicated, but we are likely to win.

Is this too soon, as some have said? Is it too shocking? Should we be patient and go state-by-state to gain the support even more slowly than we have?

I’m weary and angry and enough is finally enough.  I look forward to victory in June.

Turn the Internet Red

Note to readers: I cite to Wikipedia instead of the actual cases to make the source material more readable for you. You can follow the Wikipedia citations for more details if you wish.