When Is It OK To Throw The First Punch?

“There is separation of colored people from white people in the United States. That separation is not a disease of colored people. It is a disease of white people. And, I do not intend to be quiet about it.” -Albert Einstein, Genius.

The reaction to the Zimmerman not guilty verdict speaks loudly about the size and extent of the continuing racial divide in the United States.  I've been trying to come up with a way for my white friends, even the most conservative of them, to understand what Black America is feeling and thinking. And to help my black friends understand what many whites are thinking, understand the legal obstacles and develop a successful action plan to make sure that this time, change happens. And to help us all move forward in peace.

The reason there is such a disconnect, I think, between white and black America on this case is precisely because many whites think that Trayvon threw the first punch, and then deserved what he got (or so their argument goes). From black America's perspective, Zimmerman racially profiled him and, by stalking a teenage child with a gun, essentially started the fight, even if Trayvon may have thrown the first punch, which they don't believe for a second. And they say to paint him as a thug or paint him out to be a violent aggressor that did throw the first punch is itself racial bias. 

But it's this line over when it's ever appropriate to throw the first punch and who exactly threw the first punch that is at the heart of the difference in a lot of people's view of the case's outcome.   It's a way to discuss the matter to reach the hearts of even the most hardcore of your conservative friends. A way to start to open up their minds. A way to help kickstart the healing process for the nation that still needs to occur.  So I came up with this question and posed it to my friends:

We should all be able to agree that you never have the right to throw the first punch. 
Which is the law. Or was the law.  Or can we even agree on that much?   

Apparently not.

To me personally, it's just quite amazing that we cannot all agree on this one very simple common sense rule. Don't throw the first punch. Yet, my friends, who included both hardcore conservatives AND very progressive liberals consensus answer was: "you can throw the first punch if someone is a bully, or brandishes a weapon, or once the fight dance starts, or once fighting words have been spoken, or if you feel threatened that you may not make it home, even if it's not life or death, if you're concerned another may harm you in any way physical."  (The phrases in this consensus answer are equally split between liberals and conservatives, and the last portion came from a conservative). 

I don't necessarily agree that is the law, btw, but let's just take their neutral answer at face value.

So doesn't that apply to Trayvon Martin?  Didn't George Zimmerman do some, maybe even all, of those things in their encounter?  (Not to mention that we had an adult gunman "stranger" stalking a kid who was taught by his parents not to talk to strangers, like we ALL teach our children).  And if so, my conservative and liberal friends who responded (and perhaps you too if you agreed with any of their answers), have just said, if it was them, they may have, or would have, thrown the first punch, just like Trayvon may or may not have done.  And the evidence, America, is inconclusive on that point.  The only person alive who really knows is George Zimmerman, who may not be credible.

Whether you are conservative or liberal, apply your own rule in your own life as to when you would throw the first punch to Trayvon Martin and his situation, and what he was experiencing and thinking at the time Zimmerman stalked and then confronted him.  If you find that your answer would justify your own actions, but not Trayvon's actions, that difference in your answers may reflect your racial bias as to your view of the case and it's outcome.  And if you're sitting there reading this thinking, "yes, but I would always act reasonably, and I don't think he did," that includes you.  The evidence is inconclusive as to what exactly happened, but your view of it is not.  Why?

We all just need to stop making "assumptions," stop extrapolating facts into more than they mean or turning opinions into facts. That is a big part of the problem on all sides of every issue in America.

And the problem is not limited to White America.  Latinos do it too.  Bob Dylan was recently racially profiled in Latin neighborhood as a scruffy old white dude acting suspicious.  So they called police and he was taken into custody for acting suspiciously, not being in the right neighborhood, until the officer could check his ID.  (See, http://www.dailymail.co.uk/tvshowbiz/bigbrother/article-1206617/Like-complete-unknown-Bob-Dylan-frogmarched-collect-ID-rookie-policewoman-fails-recognise-scruffy-music-legend.html)

Black America does it too.  Make assumptions that favor the outcome they desire.  A lot of us want to give Trayvon the "benefit of the doubt."  However, the evidence is inconclusive as to what exactly happened.   It is only wishful thinking to seriously argue that responding with violence was his ONLY choice, or his best choice, or even a good choice based on the evidence in the trial record. Maybe it was, maybe it wasn't. The evidence is not conclusive. And NONE of us really know for sure. 

My point here is that assumptions, opinions, hopes, dreams, wishful thinking, and "maybe" is not enough in a criminal case.  And while it has been helpful to have Black America open White America's eyes to these question, and to point out that all the assumptions trying to blame Trayvon or paint him as a thug who started it and deserved what he got are just that assumptions, harmful ones, and ones that may reflect a prejudicial bias.  However, those making the opposite argument proclaiming Trayvon did "nothing wrong" and was completely innocent and blame free are guilty of the same flawed thought process.  "Maybe" even with the "benefit of the doubt" is still not proof "beyond a reasonable doubt" (a 99.5% certainty).  However, "maybe" might be enough in a civil negligence trial where the standard is a preponderance of the evidence (a likelihood greater than 50.1%) and consideration of all the circumstances can be viewed in a way that, while not conclusive, is more likely than not.

Until we're willing to discuss the "elephant in the room" it will continue to stomp on all of our dreams. The fact is that we ALL have built-in racial biases.  Most of us choose not to act on the ones of which we're aware.  But as the Harvard project on racial bias shows us, ALL of us have and act on racial biases of which we are not even aware.

It would be a travesty, and contrary to Martin Luther King, Jr.'s, words on non-violence, for this case to send out a message to our society that if a "creepy" guy is following you, you shouldn't retreat or find help or call police, but instead you should attack him, or worse yet, shoot him.  What a horrible message to send anyone or our kids. The answer is not to promote violence, but to promote better understanding and communication.  To educate ourselves about our biases and the falsity of our stereotypes, or our societal stereotypes, and consciously attempt to do better in our own lives.  To think before we speak and act, and to consider if bias or stereotype or false assumptions about another or their motives or intentions or circumstances may be at play in our thinking.  Let's not gloss over that part. 

Here are some thoughts for you to consider:

• The reason this is still an issue and will continue to be is because this type of racial profiling or stereotyping is far too common in our society. And really, we do need to fix that situation through education and opening people's minds and hearts. On BOTH/ALL sides of the issue. And soon.  Are you willing to examine your own biases?  Are you even willing to have this conversation with yourself, let alone your neighbors?
• The jury "agreed" with the proposition that the state did not prove murder or manslaughter, or disprove his self defense claims, beyond a reasonable doubt. Nothing more, nothing less.  This does not mean Zimmerman is innocent, just not guilty beyond a reasonable doubt of the state's charges.  We should and must respect the juror's verdict.  This is a bedrock principle of our justice system.  For good reason.
• Justice, Truth, and the Law are apparently frenemies.  They are not always mutually inclusive.  It is sad truth about our American justice system. But WE have the power to change unjust laws and our system.
• If we just changed the laws to take the guns out of the hands of civilian crime watch volunteers, there would be less tragedy. With no gun, Zimmerman would have never gotten out of his car or followed Trayvon.  Even conservative juror B-37 agreed that this was a mistake in judgment that contributed to Trayvon's death.  (See, http://www.mediaite.com/tv/cnns-anderson-cooper-interviews-anonymous-member-of-zimmerman-jury-who-defends-acquittal-decision/ )  I think almost all of us can agree that Zimmerman's decision to get out of his car only makes sense if you have a gun. Actually, we ALL should be able to agree with that.
• It is for this, and other reasons discussed below, I think the family has a good chance of proving up a civil negligence case against Zimmerman. I also think, however, that the beyond a reasonable doubt applied in criminal manslaughter and murder cases is, and should be, a particularly high standard of proof.  For good reason.
• I agree with those that say the police should have arrested Zimmerman more immediately. Otherwise, justice would be meaningless.  I think the media has made a circus of this case intentionally for commercial profit.  Not all, but some, perhaps even most of the major media corporations. But let's remember that what really made a mess of this situation was Zimmerman and his gun. I think a trial was warranted. He killed an unarmed boy. On purpose. We should all be able agree you should be required to explain that deadly decision in court and that requirement to do so should actually be the law in every inch of America.  

As someone who has actually successfully tried Federal civil rights cases, we should keep in mind that the DOJ would have to prove that he intentionally pulled the trigger in that moment because of Martin's race instead of because the kid attacked him first and/or was beating the shit out of him. That evidence is not conclusive. If you claim Trayvon did "nothing wrong" you've got to prove he did not start the fight and that he was not beating the shit out of him. Or that he had no other choice given the actual circumstances that confronted him. And the truth is, nobody knows.  It is not enough in such a case to prove merely that he profiled him, got out of the car, or followed him because of some racial bias because Federal hate crimes prosecution would require proving Zimmerman was motivated by malicious racial intent at the moment he shot Martin AND did not act reasonably in defending himself "beyond a reasonable doubt." The families civil suit, on the other hand, would only require proving negligence by preponderance of the evidence, and unlike a Federal criminal trial, he would have to testify.

In other words, it'd be much easier for the family to successfully prove in civil court that Zimmerman was negligent, even grossly negligent, particularly since Zimmerman would be forced to testify, which would magnify the effect of any lies and the focus is much wider in negligence to include all the circumstances leading up to the event - the racial profiling and decision to follow. But when you raise that standard to malicious racial intent at the very moment of the shooting plus proving complete lack of any valid self defense claim, all beyond a reasonable doubt, as would be necessary to prove up a Federal hate crime, then the focus narrows to only their physical altercation - the much higher burden of proof essentially acts to hyper-elevate the importance of what happened during their actual confrontation and physical fight, unlike the much broader evidentiary focus of a civil negligence case. And it makes proving up such a case much more difficult. I don't expect the DOJ is going to go forward, but they might.  The family, on the other hand, has a much better chance to prevail in a civil lawsuit.

If you claim Trayvon was acting in self defense, you've still also got to prove that beyond a reasonable doubt in a criminal case, unlike a civil case, and the evidence is not conclusive.  Also, you've got to prove beyond a reasonable doubt that the facts of their actual confrontation, not just the profiling or following, fully justify Trayvon's conduct, for the reasons discussed above.

Personally I'm just not 99% convinced Trayvon did "nothing wrong" here.  I'd like to think that.  I hope that's true.  However, the actual admissible evidence at trial was just not conclusive. That fact makes it really hard to prove up anything beyond a reasonable doubt as required in a criminal case. However, it also has less of an impact in a negligence case, i.e., you might still be able to prove up beyond a preponderance of the evidence (50.1% v 49.9% chance) a negligence case even if Trayvon's own conduct may have (or may not have) contributed to the outcome. 

The difference in a criminal case requiring proof of malicious racial intent at the time of the shooting is this is not really an objective standard, which perhaps it should be, but is viewed from the mind of the shooter - i.e. did he reasonably believe that his life was in danger and that was his sole reason for his action or was he also motivated, at least in significant consequential part, by any intentional racial prejudice.  The medical evidence showed evidence of an actual fight, wounds that apparently were not self-inflicted, and a dispute in the testimony presented by both sides experts as to the significance or extent of the injuries. And for the sake of argument, I personally am pretty much assuming and conceding, unlike juror B-37, in all these discussions that Zimmerman is lying about exactly what happened. But the scientific and medical evidence, and the phone calls, prove Trayvon did fight with him.  Unfortunately, there's no proof that Trayvon saw the gun at any time except right before the moment he got shot. (Personally, I think the prosecution screwed that up by not suggesting that Zimmerman had drawn his weapon or uncovered it on the way to the encounter, which could have happened, but again that's just speculation, and not proof beyond a reasonable doubt).  Given the lack of witnesses to what actually happened at the critical moments other than the two actually involved, it may just be too impossibly high to meet the burden in a criminal case.

Many claim that if the parties had been reversed the outcome would be different. Maybe, maybe not. Remember, the prosecution actually made that argument to the jury in their closing arguments, and the jury apparently rejected it. Statistically speaking, however, you might be right, and that fact is certainly something that we need to desperately fix that in our society.  Black America is correct. Maybe this case will help motivate us to do so. I hope. 

So then what do you do if a "creepy" guy is following you and packing heat?  What are your options?

One of my friends asked me this question, and my first response was, "I think you call the police, and either find help, get away by walking or hiding or running depending on the situation, or go home & lock the door, or go to a neighbor's and lock the door, or go to the nearest police station."

And then my friend Tanner responded, "Or stand your ground, right? That's why the law exists."

It stopped me cold.  Is that what Trayvon Martin did?  Is that what George Zimmerman did?  Is that something we should even allow in situations where, as Attorney General Holder mentioned, you have a gun and have a reasonable opportunity to safely retreat?  Which has been the law for centuries until the recent wave of Stand Your Ground laws were enacted in 33 states.

My personal view is that even under Stand Your Ground, you still have to act reasonably and not start a fight just because you're being followed, unless there is some further provocation. If the creepy guy just asks you a question, etc., then you have no right to hit him even if you're reasonably scared or afraid.  But if the creepy guy attacks you first, or pulls out a weapon, or tries to put his hands on you, or tries to detain you against your will, you likely would be entitled to deck him. Right? And that gets us right back into the question of what actually happened during their encounter/fight, and proving it up beyond a reasonable doubt.    But is that the law under Stand Your Ground?

Reading through these Florida Stand Your Ground decisions, you really begin to see why something is wrong with these laws. http://www.huffingtonpost.com/2013/07/16/stand-your-ground-cases_n_3606405.html

Don't be fooled by erroneous media reports into thinking Stand Your Ground has nothing to do with this case.  It was very much a part of this verdict.  In addition, the whole delay in Zimmerman's arrest, and some might say the poor job done by the police in not properly gathering evidence and the prosecution in putting on their case at trial, was due almost entirely to authorities initial belief that stand your ground was applicable to Zimmerman and the practical effects it caused.

I've heard many media commentators and talking heads incorrectly claim that Stand Your Ground laws have nothing to do with what happened in this case since the defense lawyers waived have a pre-trial Stand Your Ground hearing, which would, if successful, have avoided a trial altogether under Florida's law.  The defense team waived a pre-trial hearing before a judge, but did not waive the issue at trial.  Quoting from an ABC News story about that decision, Zimmerman's lawyer Mark O'Mara said:  "We'd much rather have the jury address the issue of criminal liability or lack thereof."  http://abcnews.go.com/m/story?id=19074241  They did not waive the issue for the ultimate trial, they just made a pre-trial strategic decision to let the jury decide the Stand Your Ground issue.  

If you watched the trial, then you know the defense actually argued in closing argument that Zimmerman had no duty to retreat and was justified in meeting force with deadly force.  This is the Stand Your Ground argument.  AND the judge included the Stand Your Ground law in the jury charge she read to the jury. Here are the jury instructions, stand your ground language (look for "no duty to retreat and had the right to stand his ground" language) was in the jury charge at p.12. See for yourself: http://www.wesh.com/news/central-florida/trayvon-martin-extended-coverage/read-the-george-zimmerman-trial-jury-instructions/-/14266478/20950196/-/gio1u8/-/index.html

In states that have Stand Your Ground laws, as the Florida case survey article mentioned above demonstrates, perhaps we should at least write in and pass exceptions to asserting this defense if your conduct was motived in any part by race or bigotry or prejudice of any kind, or if you engaged in hothead activity or a heated argument which escalated the situation, or if you chose to forego a reasonable opportunity to call 911 and wait for police to arrive to help, or apparently, under Florida law, if you shoot someone in the back or are engaged in criminal gang or drug activity.  And if we can agree most or all of these exceptions are warranted, then perhaps we can agree to just repeal the entire Stand Your Ground law.  That is actually something positive that we all can and should do.

But given the law actually given to the jury in this case, which included Stand Your Ground language (and Joy Reid of MSNBC you actually owe juror B-37 an apology on this one), the justice system did not "fail the public," unlike the actual law itself, unless you are pre-disposed to a particular outcome based on your own bias or through an internal process of providing your and others' speculation and assumptions with the weight and import of actual facts. The evidence was not conclusive either way. And that is not enough in a criminal trial requiring proof beyond a reasonable doubt.

And while you may disagree with the verdict, or even with the juror's reasoning as it becomes known, there is no evidence the jury was "fixed" or "paid off," and so it does none of us any good to suggest that or think that way.  The mentality of a community lynch mob often does not appreciate voices calling for objectivity and reason, and interfering with their desired agenda, even if that is when they need them most. And here, we need those voices.  All 6 jurors unanimously agreed that the State of Florida did not prove up their case, based on the instructions about the law given to the jury, beyond a reasonable doubt. Their verdict means nothing more and nothing less. 

As my friend Timothy said:  "Our constitution was designed to let some guilty go free to 'hopefully' avoid punishing the innocent. If he intended the outcome, the law facilitated legal murder. Learn from it and change the law. If he did not intend the outcome, the law could be used to facilitate legal murder. Learn from it and change the law. If he was just overzealous and negligent, it was legal manslaughter, LEARN FROM IT AND CHANGE THE LAW!"

In addition to changing unjust laws, we can change ourselves, and our neighbors by the example we set and the good judgment we exercise.  And, as a society, we can move forward in teaching people how to recognize and overcome racial biases and stereotypes.  We can be more careful not to make false assumptions.  We can and should look into our decisions to charge and prosecute individuals to determine why so many more people of color are charged and prosecuted for crimes when whites, who have engaged in nearly identical acts, are not similarly charged or prosecuted.  We can demand that justice be applied equally. We can insist, by investigation, that American justice be colorblind.

And we can implore our local and national media not to promote or engage, or seek to profit from sensationalism of any of these situations either.  Imagine what would have happened in this case if ALL the media talking heads had just uniformly said "we do not know exactly what happened, and therefore we all should avoid jumping to conclusions, avoid letting our biases infect our judgment, and trust our judicial process"? Imagine if the national press corps had said while we can stir things up to sell TV ads, we think the damage we might do by stirring up opinions on both sides of the issue might do more harm than good? Are we really helping America move forward by intentionally stirring up controversy, encouraging extreme opinions, to increase ratings or commercial profit?

As a civil rights lawyer, I have read a lot of the writings of Martin Luther King, Jr.  In my opinion, I think we can safely say that he would not be calling for riots or violence in response to this verdict, but he would be calling for action to change gun laws and for a national conversation about race and elimination of harmful stereotypes.  But it is no longer enough to call for a national conversation on race. We have been making that call for decades.  It has been nearly 50 years since Dr. King died. This time, we must actually have that conversation.  We must look where we are ashamed to look. And we must bring our racial prejudices and biases out into the open and fix them.  In ourselves, and to the extent we can, in others, and in our nation's laws. This time, we must take wise action.

There is a silver lining.  Our youth are less hung up on race than older adults are.  And that's a beautiful thing.   And we elected our first black President. There is hope for America's future. It will be hard to have this conversation, and harder yet to overcome our biases, but it is necessary.

My friend, Evan Curtis said this:  "I hate how I still do sometimes (act on stereotypes). It's not just race either. When I walk through downtown Tulsa and see a "creepy" homeless guy sometimes I'll avoid him. Black or white. Then I have to examine my conscience. Look deep into my heart and ask why. Soon after, I realize again the only thing that can fix this is love. I want to love people and when I slip into making assumptions, I'm not doing that. If we're going to get past this our culture needs to stop passing the idea of love off as some naive hippy notion."

I wanted to share that thought with you because I appreciate his honesty. We need more of that. And, because, as he suggests, maybe it's not just more love that we need, maybe we also need to recognize and change how our own false assumptions and stereotypes impair our ability to give love. What a beautiful truth to leave with you.

"Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded." Robert Kennedy (1968).

Beth Isbell
Oklahoma City, Oklahoma
Former Civil Rights Attorney
July 18th, 2013

Is it possible to see our own biases, all of them?  Is it possible for us to change unjust laws given our current political environment?  It is possible for us to end suspicion in our society for Walking While Black or Driving While Black?

_______________________________________________________________________________

In memory of Trayvon ... 

White Is Black

©2013 BeTh isBell

White is black, but black is not white,

White is black, and something’s not right.

White is black, but black is not white,

White is black, and something’s not right.

You have a gun, you’re not afraid

You never run, from anyone.

You have a gun, you’re not afraid

You never run, you’ve got your gun.

White is black, but he is not white,

White is black, and something’s not right.

You have a gun, he’s got his candy,

You never run, you’ve got a gun.

And in the moonlight, when black is not white,

Something’s not right, something’s not right,

And in the moonlight, when black is not white,

Something’s not right, something’s not right,

And so you follow, ‘cause black is not white,

And something’s not right, something’s not right,

And so you follow, and then you fight,

Something’s not right, you’ve got your gun tonight,

And he is dead, and he is dead,

That fuckin’ punk, and now he’s dead,

And in the moonlight, when black is not white,

You pick a good fight, you’ve got your gun tonight.

White is black, but black is not white,

White is black, and something’s not right.

White is black, but he is not white,

White is black, and something’s not right.

They always get away, they always get away,

These fuckin’ punks, they always get away,

But not tonight, but not tonight,

Something’s not right, you’ve got your gun tonight,

They always get away, but not tonight,

You’ve got your gun, and black is not white.

And in the moonlight, when black is not white,

You pick a good fight, you’ve got your gun tonight.

And something's not right.

And something's not right.

Breaking Down This Week's Civil Rights Rulings

This week, the US Supreme Court decided four landmark civil rights cases clarifying the legal standard for affirmative action, restricting enforcement of the Voting Rights Act, and establishing gay rights in the DOMA and Prop 8 cases.  But it's not schizophrenia, or race v. gay rights, or new v. old rights, as many commentators have opined this week, in confusion or dismay, which drove the differences in this week's outcomes, it's the judicial philosophy of the swing vote on the Court, Justice Anthony Kennedy.

It was my theory as a civil rights lawyer, and still is, that while Justice Kennedy may be conservative in many types of cases before him, that he's actually slightly liberal when it comes to core civil rights.  Not progressively liberal, mind you, but still liberal.  He believes in radical equality.  And by that, I mean, he believes that government should not discriminate in ANY of it's decision-making, particularly as to any matter he views as a non-issue, such as one's race, color, or now LGBT status, which he thinks are or should be treated as irrelevant to any personnel or governmental policy decision.  The result is what appears to many outside commentators this week as judicial schizophrenia, but his approach is actually very considered and logical.  He may be tough on facts, but once he feels one's legal burden has been met, a strong ally for civil rights and for the legal framework applied in these pivotal cases, but a firm believer that remedies must be appropriate and narrowly tailored.

Let's look at this week's cases.  

AFFIRMATIVE ACTION

In the affirmative action case, Justice Kennedy and the majority applied this philosophy to require the University to make a better showing that it's affirmative action plan met the heightened legal standard applied in determining whether such an extraordinary remedy is appropriate and appropriately tailored.  Remember, however, that his initial approach is radical equality.  As such, he is not a big fan of affirmative action, which plays favorites based on race, without a very strong showing that the remedy is still justified by the current or relevant historically recent conduct and narrowly tailored to that end.  The law of affirmative action has historically developed that even where there is no immediate act of discrimination that certain institutions, such as colleges and universities, which engaged in long-term widespread and sometimes very open and ugly discrimination in admissions, are allowed to create plans which boost minority admission numbers closer to community demographics in order to encourage student interaction in a real world environment which includes substantial minority representation.  While Justice Kennedy, who authored the majority opinion, does not personally favor remedies not resulting from specific conduct, here he overlooked that philosophy and voted to preserve this type of historic social engineering use of what he otherwise considers an extraordinary remedy - affirmative action. He reminded the lower court of the proper standards to consider, and added some new additional tweaks in the amount and type of proof the University would have to submit to obtain approval of it's social engineering type of affirmative action plan, but a larger picture would suggest that we should be grateful he did not axe this remedy all together.  It suggests he is mindful of the struggle, and long distance left to travel, to ensure true equality in society.  In the end, however, he believes even where affirmative action may be justified by current facts, the plan must be narrowly tailored to pass Constitutional muster.

VOTING RIGHTS ACT

In the Voting Rights Act case, most commentators have been puzzled by the Court's schizophrenia when contrasted with the rulings in the two gay rights cases.  But if we again consider J. Kennedy's base approach in these cases, it becomes much easier to see why these cases yielded different results.  Like the affirmative action case, but unlike the two gay rights cases, the VRA case was another case involving remedies to discrimination, rather than discrimination on current facts before the Court.  Yes, I realize that Shelby County has a bad history and was challenging DOJ intervention on a current policy it proposed to implement that it had not been allowed yet to do so, and I would and do personally differ in my opinion as to whether Shelby County actually deserved assistance here, but from the standpoint of the court, this was a case about whether the statutory remedies were appropriately and narrowly tailored to the actual conduct of the states and localities listed in §4.  As the majority chose to frame and determine the case, any issue of Shelby County's specific conduct must wait until after first deciding the basic statutory validity question of whether Congress had appropriately included it and the other states and localities listed in §4 of the Act.

The 15th Amendment of the Constitution declares the right of US citizens to vote shall not be denied on account of race or color. Section 2 of the 15th Amendment exclusively gives Congress the authority to enforce this decree by "appropriate" legislation.  Despite overwhelming votes by Congress to extend the Voting Rights Act as recently as 2008, the Court apparently did not believe the voting rights legislation passed by Congress, and particularly, the methods used to determine what state and local governments had committed sufficient racial discrimination recently and repetitively enough to warrant their inclusion in §4, such that they would be required to obtain pre-clearance for new voter rules under §5, was, in fact, "appropriate."  It ordered Congress to fix that.

In a prior opinion on the Voting Rights Act, the Court had expressed it's concern that a list from 1965 of bad actors who should be legally required to submit new voting rules to DOJ and obtain pre-clearance before their enactment might need revision in light of policy, social, organizational management, and demographic changes which had occurred in those jurisdictions and affected government entities since the Act was originally passed.  Congress took the Voting Rights Act up again in 2008, conducted some cursory hearings, issued a new 1,500 page report of findings, evidence and testimony from hearings, but failed to make any substantial changes to the 1965 Congress' list.  As a lawyer, I can tell you from personal experience ignoring a Court's order can land you in a world of trouble.  And that's what happened here.  Again, I might differ in my personal opinion as to the amount of deference due Congress's determination, but this Court and J. Kennedy found that Congress had basically given short-shrift to the whole concept of conducting actual fact-finding and had instead just cobbled together language from old reports, and prior work, instead of doing much new investigation into what was actually occurring on the ground in each state/locale identified by §4 of the Act.  This angered conservatives on the Court who ordered the initial review. But the Court, in it's ruling, did not vacate the extraordinary remedy of pre-clearance established in §5 of the Act, instead it simply invalidated the list of states & local governments set forth in §4.  It required Congress to do a better, and much more thorough, job to determine where there are truly still racial problems in voting based on a proper detailed factual investigation into the current situation at hand.  Again, this ties back directly to J. Kennedy's insistence that extraordinary remedies dovetail with current facts which justify continuation of those special remedies. The larger news here is that this was probably a compromise to keep the conservative justices from throwing out §5 altogether.

Yes, the decision has drastic immediate consequences.  Just this week, since the VRA decision was announced, most of the jurisdictions that had been previously listed in §4 have renewed efforts to implement restrictive voter ID laws, that had in some cases been invalidated under §5 after review by the DOJ or lower federal courts.  And creates a very real problem that many of these laws may be in place in the upcoming 2014 or 2016 elections before Congress can act to create a new list or before Courts are able to intervene at the request of affected parties, conduct hearings, and halt any of these laws still determined to be discriminatory in design or impact, before they have done their damage.  As a civil rights advocate, this is not a result I agree with or would have let occur given the consequences, but I understand how and why it resulted.  You just can't piss off a court by ignoring it's orders, you can't rely on determinations made almost 50 years ago to justify current conduct, and the remedy you do craft, under Justice Kennedy's approach, must be very narrowly tailored to current evidence.  Congress can and should move quickly to fix this.  Whether Republicans, who will benefit in upcoming elections by excluding minority voters through more restrictive voter laws, will agree to do the right thing instead of the thing solely guided by their motivation to stay in power, is quite another.  Perhaps in another era we could trust legislators to put aside partisan interests for the good of the country, but to even expect that to occur in this current era seems like a pipe dream of optimistic balderdash.  The only real hope is to forestall some of the consequences by ardent skillful litigation and to try to get Congress, and reluctant Republicans, to do the right thing and create a new list through mass public pressure.  I have not lost hope that on an issue so important the parties cannot put aside partisan differences and get the job done, but it will be a struggle, and only by all of us calling constantly will it get done.  Where I live, in the South, racial discrimination still happens.

LGBT RIGHTS

This brings us to the two LGBT rights cases.  

A small victory for the LGBT community in the Prop 8 case in the Court's determination that the groups trying to stand in the shoes of the State to defend Prop 8, since California's executive officials had refused to defend it, did not have proper standing to do so.  The result is that while Prop 8 passed, the ruling of the Appeals court finding it unconstitutional is now reinstated as law.  The State of California has no obligation therefore to enforce it, and all marriages between gay and lesbian couples that occurred before it past are again now legal.  I would expect California to again start issuing new marriage licenses based on it's policy as existed before Prop 8.  Justice Kennedy actually dissented from this ruling, indicating that he would have ruled that the parties defending Prop 8 did have sufficient interest and standing to litigate the case and defend the law.  This suggests Justice Kennedy wanted to discuss the merits of the case and may have even been ready to issue a more complete grant of equal protection rights under the 5th and 14th Amendments to gay and lesbian couples than actually occurred in the DOMA case. Reading the tea leaves, but we will never know for sure, or at least until the next big case on this issue is taken up by the Supreme Court.

The DOMA ruling is a victory for the LGBT community.  The Court ruled that the Federal Government cannot discriminate, as a matter of equal protection, against gays and lesbians on matters of marriage, but only if those marriages are "lawful" under State law.  My reading of the case suggests that the Court intended this to be the case in any determination made by the Federal Government, including as to provision of other benefits and consequences of spousal statutes.  The Court did not define the protected class to include LGBT citizens broadly, as it could have, but instead chose only to protect those LGBT citizens lawfully married by their State as their State, and each State, defines marriage.  The level of protection afforded under the equal protection amendment for any class protected under the equal rights clause of the 5th or 14th Amendments can vary widely, from government merely having a rational basis for it's new law as being sufficient to sustain it's legality, to modified mid-level standards of substantial government's interest, all the way to requiring the government to have a compelling state interest narrowly tailored to justify any discrimination the law might otherwise create.  As the majority found that DOMA did not even meet the rational basis test, it had no reason to go further and more specifically define the litigation burdens on future parties. This is bound to create much confusion to both Courts and parties in future litigation brought to challenge laws in states which have not yet approved gay marriage, or establish entitlement to equal treatment in provision of Federal benefits by gay couples not located in a pro-gay marriage state.

The Supreme Court did not come right out and say that LGBT persons are protected as a class, as they have done in other equal rights cases involving race, national origin, gender, etc., although the majority's citation to it's litany of equal protection clause rulings may be intended to do so implicitly.  While the majority included favorable language to those fighting on the front lines of this historic rights battle, it couched it's central ruling in the cloak of a State's right type argument - that the definition of marriage was exclusively a province of state governments (think 10th Amendment-ish) - and that the Federal Government was without Constitutional authority to set aside the state's determination without a better reason than was offered in this case.  I don't know about you, but this does not allay my concerns or provide me with a warm and fuzzy feeling about their ruling.  It seems to allow States to make their own choice on the issue, even if that is against allowing gay marriage, as it is their exclusive province.  

This certainly will make the path of those fighting for equality in red states much more difficult to conquer.  This appears to be a concession by Justice Kennedy to the States rights concerns of the Court's conservatives.  Unlike the Voting Rights Act case which appeared to be driven by the Court's displeasure with Congress more than political concerns, in the DOMA case, the ruling was made with an eye towards the current political and social landscape. I guess one could say that is actually yet another similarity or consistency with the VRA ruling - lawmakers must be guided by current facts and social conditions.  But the truth is more likely that since the issue brought to the Court only directly affect the Federal Government's policy and the State of New York and other states similarly situated which allow gay marriage, there was room for the minority to bargain over any additional breadth of the opinion, particularly as it might affect other states not directly impacted by it's rulings.

The question thus framed is will this new fledging Constitutional equal protection right for LGBT persons be sufficient to overcome a red states restrictive laws outlawing gay marriage and/or defining traditional marriage as between one man and one woman?  Based on this opinion, the answer is that a state may very well be able to overcome this limited rational basis oriented LGBT protection if it has a good, legitimate, non-discriminatory, and valid reason for differentiating between gay and straight couples.  But defense of traditional marriage, moral objections, religious objections, are not valid concerns that any governmental entity can lawfully consider under the language of the Court's DOMA opinion.  And it does not appear, as of yet, that conservative legislators in these states have come up with any reasons yet which fall outside this box.  In considering the issue, it seems they would be hard pressed to do so.  But if a state is able to fashion some other legitimate reason for differentiation between LGBT and straight couples beyond moral or religious objections, who knows?  

I should note here that procreation was offered and rejected as a reason in this case.  States allow lots of people who are unable to have kids, or just choose to not to have kids, all the time. Not a valid reason.  Something more than a reason not equally applied to straight couples will be required by the Court, but they have only specified it must be "legitimate" and "rational." 

We are not being afforded full equal protection as is afforded on account of race, national origin or even gender, the LGBT community is being offered something less, again.  And frankly, as an LGBT citizen, and one very knowledgeable in civil rights litigation, standards and burdens of proof, this angers me a bit.  Race requires a compelling state interest before government will be allowed to do something which will cause discrimination, LGBT status only requires a rational basis to justify governmental discrimination at present, if LGBT status is directly protected at all, without the approval of state that allows gay marriage.  And that is problematic in the long run, because if the standard remains there, it has been my experience in litigating thousands of civil rights cases, that it is much easier for a state to offer a reason that passes the bottom level equal protection rational scrutiny test.  Even weak reasons have sometimes been found sufficient, if otherwise legitimate and not motivated by bias.  The rational basis test is really not much protection at all in the historical context of equal protection cases and the standards that have developed.    However, it is some protection, in that it requires more than hate, homophobia, or religious objections, to overcome.

The plaintiffs in the DOMA case did not challenge Section 2 of that Act, which means that it is still presently the law, and valid law as enacted by Congress, to "allow(s) States to refuse to recognize same-sex marriages performed under the laws of other States."  (Opinion, p.2) The plaintiffs challenged Section 3 of DOMA which attempted to redefine marriage for Federal law purposes only as only between one man and one woman.  DOMA does not block states from recognizing gay marriage. We can expect to see a slew of new legislation offered in the 38 states that do not currently allow it.

The decision is largely a cop-out, an avoidance of the real issue at hand, whether LGBT citizens are entitled to full and equal Constitutional protection.  Instead the majority opinion leaves the questions to the States and resolves the issue by saying merely that the Federal government cannot undermine the dignity and new status afforded to LGBT citizens under each State's own domestic relations laws.  Consider the Court's own language:

"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975).  The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens."  (Opinion, pp. 16-17)  

"What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. ... The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other." (Opinion, p.19, emphasis added)

If this is a new Constitutional right, according to the Court it is one that could possibly be taken away by majority vote, as the Court very well understands is how all State's normally determine and enact their domestic relations laws.  A new Constitutional right that can be taken away in any State by majority vote?  That, of course, is the exact question the Court punted in the Prop 8 case.  Gee, it sure would have been nice to have some assurance.

"For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledg- ment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving under- standing of the meaning of equality."  (Opinion, p.20) 

The State of New York confers this right and dignity.  But the opinion does not say directly the US Constitution does.  And that's an important detail to leave out.  Or question to leave unresolved.  

The majority addresses that question more directly in Section IV, the last section of it's opinion, but only creates even more confusion by constantly intertwining two previously distinct concepts:  equal protection of minorities under the equal protection clause, and equal protection of a class of citizens protected by choice of a state on a matter solely within the choice of the state to protect or not protect, which is more in the nature of a State's rights issue under 10th Amendment, rather than how an equal rights issue under the 5th Amendment is normally discussed.  See for yourself:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. (Opinion, pp.20-21). ... DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.  (Opinion, p.22) ... And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. (Opinion, pp.22-23, emphasis added).

So is the Court saying that without being made "lawful" by the authority of the State, there would be no disadvantage, stigma, or separate status?  In considering your answer, notice the underlined text.

The Court then addressed the effects of forcing a State to discriminate in marriages against it's will:

"This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."  (Opinion, p.23, emphasis added) 

Is the majority saying that it's sodomy opinion is the extent of this new Constitutional protection?  It is unlikely the Court is saying that "all" "moral and sexual choices" by any citizen are always protected, consider child molestation, rape or incest for example, but does this language make persecution because of LGBT class status Constitutionally off limits?  The majority could be more clear and less cryptic.

Suddenly, there is a moment of clarity in the majority's opinion, as if right on cue:

"The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.  What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.  The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."  (Opinion, p.25, emphasis added) 

Again, look specifically at the underlined text, what is protected is not LGBT status, but a "lawful" same-sex marriage.  As opposed to an "unlawful" one?  As in an anti-gay rights red state?  

Yes.  

The Court clearly is not extending equal rights to LGBT citizens as a protected class.  Instead, the Court bailed on this historic moment and intentionally chose to only protect a class of "lawful marriages." A class solely defined by State law.  Defined differently by each State.  As the Court made manifestly clear in it's conclusion:

"The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages." (Opinion, pp.25-26, emphasis added). 

The last sentence seals the fate.  "Lawful marriages" are protected.  Nothing more.  No class status recognition for LGBT status under the equal protection clauses of the 5th or 14th Amendments of the Constitution.  It is highly unusual for courts to define a protected class in an equal protection clause case this way.  Normally, the court would define the class by the prohibited factor - race, color, national origin, sex - rather than by a State's legislative designation.  If this is a new LGBT right, it is a lesser one, and intentionally so, when compared to normal equal rights decisions in other cases decided by the Court.  This Supreme Court has defined a purely conditional right subject to State majority rule.  

In the context of equal rights, that is actually no right at all.  (Unless your State says otherwise).

Perhaps LGBT advocates can spin the decision to argue that the Supreme Court has removed all of the objections specified in this case from consideration or use by any State in enacting it's marriage laws.  But with the underlined text highlighted above, you can see how one could argue, very legitimately, that the Court purposefully intended for this to be a choice made by each State and it's own citizens, and perhaps even if they did choose to consider invalid moral and religious objections.  
This is the battleground.

As an LGBT citizen, I want full equality under the law and I will not be satisfied with anything less. You should not be either.  Whether you are gay or straight, Government should not discriminate.

I hope my theory regarding Justice Kennedy is correct when the Supreme Court addresses these larger LGBT issues and that this peculiar opinion resulted merely from the issue not being squarely before the Court.  I once met and talked with Justice Kennedy at a legal function.  I did not get the impression that he would choose to discriminate against me.  I don't think he could guess that I was LGBT, or more importantly, that it mattered to him.

And that, gives me hope.


With the Court's new LGBT rights opinions, the possibilities for confusion are endless;  the possibilities for justice are not.

Can you tell which of these children are LGBT?