Fighting Anti-Gay Jim Crow Laws

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Friends of Padre Steve’s World

I was overjoyed when the Supreme Court legalized Marriage Equality last summer in its Obergfell v. Hodges decision. Before it was argued I compared the case with the infamous Dred Scott decision of 1856 and commented on its importance to the LGBTQ community in terms of basic civil rights. If the court had ruled against Marriage Equality it would have been very much like the decision reach in Dred Scott, but even more importantly like the case of Plessy v. Ferguson which legalized Jim Crow laws.

Thomas Jefferson wrote in the Declaration of Independence something that is the heart and soul of the American experiment.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men…” 

It is a concept that has always been practiced imperfectly in the nation, Blacks, Women and others have not always enjoyed the same rights as others, and the same is true for the Gay community today. Sadly, even when civil rights of people who are the targets of legal discrimination are advanced and legislated at the national level, opponents often attempt to use local and state laws to legalize discrimination banned at the federal level.

re-criminalize-sodomy

This was done frequently in the post-Reconstruction era, when so called “Black laws” or “Jim Crow” laws were enacted throughout the South. These laws paid lip-service to the Federal law but legalized almost every form of discrimination imaginable and established a culture of legal lawlessness where Blacks were the targets of discrimination, harassment, segregation and violence.

“From the 1880s onward, the post-Reconstruction white governments grew unwilling to rely just on intimidation at the ballot box and themselves in power, and turned instead to systematic legal disenfranchisement.” (1)

In 1896 these codes were upheld by the Supreme Court in the case of Plessy v. Ferguson. That ruling established the “separate but equal” doctrine and ushered in an era of de jure segregation in almost all arenas of life including education, transportation, entertainment and health care. The limited social equity and privileges enjoyed by Blacks were erased with the stroke of the court’s judicial pen. The justices ruled on the concept that only people’s political rights were protected by the Constitution and that in the social arena that African-Americans could not interact with whites and assumed their racial inferiority.

However, Associate Justice Harlan wrote in dissent:

“The destinies of two races, in this country are indissolubly linked together, and the interests of both require that the common government of all should not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.” (2)

While the case of 1955 Supreme Court ruling in the case of Brown v. Board of Education swept away most of the effects of Plessy v. Ferguson, the underlying attitudes and actions of those who support legal discrimination are still with us. Prejudice and discrimination, not only towards African Americans and other people of color, but also women and even more so the LGBTQ community  has come back with a vengeance in the decades following Brown v. Board of Education.  Opponents of equality hate the sweeping civil rights advances made in the 1960s and 1970s, and more recently the advances made on behalf of the Gay community in the past decade. The end of the Defense of Marriage Act or DOMA, a law which mush like the Black Codes set up legal barriers for gays to marry and enjoy other civil rights brought forth a plethora of new anti-Gay legislation, especially at the local and state levels. Most of these laws are cloaked in the concept of “Religious Liberty” and permit people to discriminate against Gays in almost any arena of life: to refuse to serve them at their place of business, to deny them service in local government offices and even to deny them health care, should the provider determine that he or she will not serve someone who is gay, all based on the amorphous concept that the providers “sincerely held religious beliefs are at stake.”

Since they failed to stop Gay Marriage, the opponents of Obergfell v. Hodges are doing everything that they can to legalize other forms of discrimination mostly on the basis of “protecting” religious liberty. The opponents of equality, including many leading conservative politicians and their supporters in the “Christian Right” are using overt fear tactics to include raising the specter of Christians being put in concentration camps for opposing Gay marriage, and other equally apocalyptic and patently untrue arguments. Justice Harlan was correct about the intent of the Jim Crow laws and the new anti-Gay laws are no different than Jim Crow. The seeds of hate cannot be allowed to be planted under the sanction of law. These are the new Jim Crow laws, and they must be fought at every turn. Opponents of Gay marriage should remember the words of Thomas Jefferson who wrote:

“I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” 

We must move forward.

Peace

Padre Steve+

  1. Guelzo Allen C. Fateful Lightening: A New History of the Civil War Era and Reconstruction Oxford University Press, Oxford and New York 2012 p.526
  2. LaMorte, Michael W. School Law: Cases and Concepts 9th Edition 2008 p.300
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