From CNN.com:

The Obama administration is objecting to a request for an immediate halt to the military’s “don’t ask, don’t tell” policy after a federal court ruled that the policy barring gays from serving openly is unconstitutional.The government calls a worldwide cessation of the policy “untenable,” saying an injunction should be limited to the plaintiff, the gay political group Log Cabin Republicans, and members who it claims are gays and lesbians serving in the military.

The government also states that an immediate termination of the 17-year-old policy may pose a threat to the military.

Sure sounds eerily familiar. Why should the “feds” insert themselves into a local matter? If a private organization files a federal suit and wins on behalf of a group that is discriminated against, that suit should only apply to the specific parties mentioned in the lawsuit. And, if the two groups (homosexuals and heterosexuals) serve together in the military it will pose a threat to everyone.

King, the Southern Christian Leadership Counsel (SCLC), and the NAACP brought legal action against segregation laws in various cities in the South. They literally tried to make a “federal case” out of the segregation policies. The Supremes weighed in, true.

But I do not believe we would have been content had the federal government taken a “hands off approach” with respect to removing the segregation policies of specific jurisdictions and types of public accommodation and education. “Well, gee. Your suit was in Alameda county. So we don’t think you should make the federal government force the folks in San Mateo county — or all counties for that matter — to allow blacks to be able to swim with whites in public pools. Besides, if we have the races sharing swimming pools throughout the Bay Area the world will come to an end.”

I realize it isn’t that bad. But still! It’s easy to see why some would consider it to be the Obama administration’s position that is completely “untenable”, not the court’s.

On the other hand, what about people who hold a different view? The argument would have to be that (on the swimming example) changing to interracial swimming pools is an unreasonable disruption in how people in the Bay Area have lived their lives and organized their cities for generations. In fact, it’ll be so disruptive that the whole nature of “swimming in a public pool” will change so radically that our “world” is going to fall apart.

It reminds me of the problem King addresses. The so-called “friends” of desegregation said that King was moving “too fast”. That he needed to “slow down”. “You’re asking for too much change too soon. It’s too disruptive. Not yet. Wait.” King’s response is telling. We’ll be reading some parts of it in his “Why We Can’t Wait”.

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Well, after startling myself while reading the first few paragraphs of Civil Disobedience aloud in class, I’m here to tell you that the Mr. Henry David Thoreau needs no help from me!

Let’s take a look at two excerpts. The first came back to me just now as I was reading an essay by Prof. Lawrence Lessig, who, unfortunately for me, is no longer at Stanford, but is now at Harvard. The essay appears online at The Nation magazine’s website. The essay is quite long. [To my students: I will assign the essay for you to read. It'll provide great fodder for argument analysis. But please finish reading Civil Disobedience first.] Thoreau writes:

But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.

This is part of Lessig’s call, and the magazine’s subsequent call, to action. Note how Thoreau tempers his earlier (I hate to say it) diatribe against government. Who can forget these lines?

I HEARTILY ACCEPT the motto, “That government is best which governs least;” and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe, – “That government is best which governs not at all;” and when men are prepared for it, that will be the kind of government which they will have.

In other words: “Limited government is cool. No. Strike that. What we need is no government! But you slackers aren’t mature enough to handle that. You lack the personal integrity and the independence of mind to deal with there being “no government”. As Jack Nicholson screamed: “You can’t handle the truth!”

The second excerpt:

After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule, is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience?-in which majorities decide only those questions to which the rule of expediency is applicable?

And here comes Thoreau’s simply devastating critique and challenge, one I believe Lessig makes today to our elected officials and to ourselves:

Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think right.

As the great philosopher Scooby-Doo once said: “Ruh-roh!”

What am I first? An African American woman or a human being? Am I a woman first or a human being? Am I a philosopher of Ancient Philosophy first or a human being? What am I first? A citizen or a human being with a conscience?

And as for our elected officials, what are they? Lessig spells out in gruesome detail what he thinks many (not all) politicians are first. (Hint: It has nothing to do having a conscience!)

Oh, for good measure, I’ll end with this next little snippet from Thoreau since Lessig addresses the influences of corporations in government and, now, sadly, in elections.

It is truly enough said, that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.

Kind of creepy to have lived when this US Supreme Court decision was announced and to be reading Thoreau’s Civil Disobedience.

I haven’t read the Supremes’ document yet (a pdf file of 183 pages). [Note to class: Later on we will be reading some of the Court's decisions central to the issue of segregation and civil rights.] Normally, it would be a Scalia who would include a juicy quote from an unlikely or seemingly unrelated source. He did an amazing job of including the lyrics from West Side Story in an opinion on loitering! Hilarious! Did he remember this essay while he was preparing his opinion? (I don’t mean to suggest that this current Supreme Court, all on their own, gave corporations the status of persons. The issue goes way back.)

The convergence today of these essays, one by Lessig and one by Thoreau, leaves no doubt in my mind that what I do for a living, and what we discuss in class, are not “academic” exercises.

This is some serious stuff. As well it should be. These are serious times.

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CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS

SEC. 4.  Free exercise and enjoyment of religion without
discrimination or preference are guaranteed.  This liberty of
conscience does not excuse acts that are licentious or inconsistent
with the peace or safety of the State.  The Legislature shall make no
law respecting an establishment of religion.
A person is not incompetent to be a witness or juror because of
his or her opinions on religious beliefs.

Well, here’s religion. No discrimination on that basis. But what if a person’s “free exercise” of religion means that she does (or does not) support certain acts. For example, what if your religious views lead you to not hire a Mormon or a Jehovah’s Witness? Or a Mormon employer who does not want to hire someone who is gay? Does it go against the peace and safety of the State? I suppose if the discrimination leads to riots, it would. This was one of the criticisms King faced. “Slow down. You’re rocking the boat. You’ll make the people in power angry. If you don’t move faster, there will be riots in the streets.” And on and on.

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS

SEC. 6.  Slavery is prohibited.  Involuntary servitude is prohibited
except to punish crime.

This is a nice addition. The next bit is crucial.

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS

SEC. 7.  (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws;

As I understand it, the central issue being argued before the Federal Appeal’s court starting today (Jan 11, 2009), is the very point of equal protection. One class of people cannot be treated differently. That would seem to be the common sense view. However, the legal interpretation of this is a bit different. I’m not a legal scholar. Things a more complicated than that.

(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

This ought to be a hard bit to argue against with respect to same-sex marriage. If marriage is a privilege and a class of persons tells another group that they can’t have the same privilege. We discussed the knee-jerk reaction that everyone is “equal”. Is it discriminating against people who are under 4ft 8in when it comes to getting on a ride at Disneyland? Is it discriminatory to have separate privileges for 9th graders that are different from 2nd graders?

And, drumroll…

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS

SEC. 7.5.  Only marriage between a man and a woman is valid or
recognized in California.

I think this is the bit that Prop. 8 reaffirmed. Or it might be that it is what Prop. 8 mandated. Bottom line: Article 1, Sec. 7.5 is the law in California.

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS

SEC. 8.  A person may not be disqualified from entering or pursuing
a business, profession, vocation, or employment because of sex, race,
creed, color, or national or ethnic origin.

Interesting that there’s no “religion” here. “Creed” might be a substitute for “religion”. There’s also nothing here about “sexual orientation”.

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