Connecticut Justices struggle with "political powerlessness"

As with previous marriage litigation, the Connecticut Justices struggled with the question of whether gay and lesbian people are "politically powerless." In fact, this was a primary point of disagreement for two of the dissenters. I've previously opined that in deciding whether a classification in law merits heightened scrutiny, courts should not try to decide whether an affected group is "politically powerless." I argued that this test is illogical, leads to absurd results, and is not required by Supreme Court precedent.

The majority on the Connecticut court held that meeting the "politically powerless" prong is not necessary where a group is clearly a discrete minority of the population. In other words, a group has to be either a discrete minority or politically powerless. Which is how I read the case law.

The majority nevertheless went on to discuss the "powerlessness" prong at length, because it represented the State's main argument on the question of "quasi-suspect class" status, and because other courts had relied on this prong even though they recognized that gay and lesbian people are a discrete minority. Having (unnecessarily) taken up this prong, the majority struggles to make sense of it in light of the history of race and gender cases. It ends up with this:

We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Consequently, a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process. Applying this standard, we have little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress.

In other words, a group doesn't have to be totally powerless, it just has to be powerless enough. At the risk of sounding like Justice Scalia, this is a mushy, contentless test if there ever was one. It comes down to, "we don't think political progress is occurring fast enough in the appropriate direction." This sort of call isn't necessary and courts can and should avoid it.

As the majority notes, "no other court has undertaken a thorough analysis of this factor." Happily, this court recognizes that its discussion of "powerlessness" is pure dicta, and one may hope that its earnest but messy attempt to make sense of this test encourages other courts to avoid basing their decisions on it.

Martin Luther King, Jr. Day and the Legacy of Bayard Rustin

[In honor of the Birthday of Martin Luther King, Jr., I am republishing here (with minor edits) an essay first seen in 2005 in The Docket, Case Western's law school newsletter. In honor of the holiday, I am also making a contribution to the Sex Workers Project (which I discussed in an earlier post).]

This time each year the nation pauses to contemplate the legacy of Dr. Martin Luther King, Jr. We congratulate ourselves on our nation's progress; we renew our resolve to work for equality and social justice; and, perhaps most of all, we debate just what that legacy means, and how it relates to the pressing issues of the day. Now that Dr. King, once a controversial risk-taker and an enemy of the government, has belatedly taken his place as a symbol of American freedom, we argue over what he would say about affirmative action, national security measures, the war in Iraq, and gay and lesbian rights.

It is perhaps on this last issue that our debates remain most contentious; even King's family members take public stands on opposite sides of the issue. The fallen leader's niece, Alveda King and youngest daughter, the Rev. Bernice King, recently spoke at King's grave for a demonstration denouncing same-sex marriage and any attempt to link it to King's legacy. Around the same time, Coretta Scott King, his widow and still a formidable activist, as well as his former student-activist colleague Rep. John Lewis, invoked that same legacy as vocal advocates of marriage equality. Son Martin Luther King III, meanwhile, denounced homophobia but declined to take a stand on marriage.

But perhaps more significant on this day of reflection than the fractured current positions of King's family and colleagues is the life and work of the man who masterminded the historic March on Washington for Jobs and Freedom, chronicled in the 2003 biography Lost Prophet: The Life and Times of Bayard Rustin. (Randall Kennedy wrote this lengthy, critical review of the book in The Nation.)

A lifelong activist for peace and equality, Rustin organized sit-ins and even a proto-Freedom Ride against segregation as early as the mid-1940s. When he heard of the Montgomery bus boycott, Rustin rushed to meet its leader, and quickly became the much-younger King's mentor and confidante. Indeed, Rustin, a devoted student of Gandhi, taught King practically everything he knew about the philosophy and strategy of nonviolent political action.

But Rustin's homosexuality, known and generally tolerated among his activist colleagues, quickly became a political liability for the blossoming civil rights movement. In that age of shame and secrecy, furtive trysts with relative strangers were the only kind of affectionate connection available to most gay men and America -- rendezvous local police were ever eager to target.
On a handful of occasions Rustin was the victim of such arrests, and foes of King et al eagerly leapt upon them to blackmail the movement. A Black moderate alarmed by King and Rustin's disruptive tactics, Rep. Adam Clayton Powell threatened to charge the two with having an affair if they went ahead with plans for a march on the 1960 Democratic convention. Outraged by the upcoming 1963 March on Washington, segregationist Senator Strom Thurmond -- whose unsteady relationship with his illegitimate Black daughter was detailed in her recent memoir -- brandished one of Rustin's arrest slips on the Senate floor, denouncing the March and the movement as the machinations of a sexual pervert. Thurmond had obtained the years-old document from FBI Director (and rumored closet case) J. Edgar Hoover.

Though King stood by Rustin in internal debates on this matter, Rustin insisted on remaining out of the limelight and, eventually, on distancing himself from King and SCLC. He largely accepted that society was not ready to accept him -- though at times he resented being singled out for his sexual liaisons while King and others in his circle were openly adulterous.
Though active for the rest of his life in campaigns against the war in Vietnam, Apartheid in South Africa, and poverty in America, and buoyed by finally finding in the late 1970s a loving life partner, Rustin's career after the March was something of an anticlimax. It was not until the 1980s that, at the urging of his partner Walter Neagle, Rustin began to advocate for gay and lesbian rights. Just a year before his death in 1987, Rustin declared that, "the barometer for social change is measured by selecting the group which is most mistreated," and that in the '80s, "the new 'niggers' are gays."

A civil rights activist long before Brown v. Board, today Rustin would recognize across America a kind of sequel to the social and political backlash that accompanied that decision and that movement's coming of age. Just as Brown and Black protests gave renewed passion to American racism even as it was in decline, so today forces in our nation mobilize with renewed fervor against gay and lesbian equality. Like Gov. George Wallace, and the young segregationist preacher Jerry Falwell, these forces are unwilling or unable to recognize that none of their temporary victories can prevent their ultimate defeat. Indeed, the campaigns against marriage equality may be a kind of long last stand in a generation-long war of attrition.

Without doubt, the struggle for gay and lesbian equality is not the same struggle, its history not the same history, as the long and continuing struggle for Black equality. Some of the most important differences stem from the changes wrought on America by the latter. But the crucial parallels, embodied in the life and work of Bayard Rustin, are clear to see, as it is that Rev. Falwell's eager apologies for his former racist stance will be echoed in the future by his colleagues today.

Pagan Rome and the Establishment Clause

My latest vacation reading is God Against the Gods: The History of the War Between Monotheism and Polytheism by Jonathan Kirsch, pop religious historian, book columnist and media lawyer. It's a fascinating read, but what does is have to do with the law?

Kirsch argues that the persecution of Christians in pagan Rome largely stemmed from Christians' conscientious refusal to offer even the most token customary recognition of the pagan gods in the course of day-to-day transactions. "What the pagans found most provocative was not the fact that the Christians chose to worship their own deity in their own way," he writes on page 16, "but that they stubbornly refused to drop a pinch of incense on the altar fire or mumble a few words of prayer in honor of the Roman deities." In his recent book on the history of the Book of Revelation, he also notes early Christians' refusal to handle the coin of the realm, bearing as it did homages to the Emperor and the gods. In the eyes of the pagan majority, the Christians were refusing to engage in the simplest acts of "civic virtue," which he compares to the modern-day, monotheistic Pledge of Allegiance.

And it's this analogy, only briefly mentioned by Kirsch, that really grabs my attention. As described by Kirsch, these tokens of civic recognition of the Roman gods do sound like our own Pledge of Allegiance, coins with "In God We Trust," and prayers at public meetings -- what the Supreme Court calls "ceremonial deism." Which makes the early Christians sound a bit like contemporary Establishment Clause plaintiffs such as Michael Newdow.

Obviously, there are huge gaps in this analogy. Pagan Rome knew no formal separation of church and state, and it came to severely persecute the Christian dissenters. As Kirsch argues throughout, pagan-Christian conflict centered on the exclusivity that defines monotheism and so outraged pagans who expected all gods to be compatible. Plaintiffs challenging "ceremonial deism" are not engaging in civil disobedience for reasons of religious conscience, but using the courts to protest what they see as acts signifying monotheists as social and political insiders, and themselves as outsiders. (In this sense the early Christians more resemble Free Exercise plaintiffs such as those who wish not to use Social Security numbers.) Defenders of ceremonial deism today don't literally expect all citizens to embrace God, only to "recognize" Him.

Still, both conflicts concern religious minorities resisting tokens of recognition of the majority religion as a condition of civic life.

So, what does this analogy do for us? Perhaps nothing in particular beyond, "hey, that's interesting." Kirsch for his own part seems both to trivialize the early Christians' refusal to "go along to get along" and to criticize today's ceremonial deism. But for me, a look at pagan Rome highlights both the unfairness of infusing civic rituals with majority belief, even in minor ways, and the differing worldviews that make it so hard for those arguing over ceremonial deism to understand one another.

I welcome your thoughts on this post particularly since I know I am skimming over many aspects of centuries of early pagan-Christian conflict, some of which may be significant for the points raised above.