America has had one Great Awakening after another – a sudden wave of religious enthusiasm, usually with widespread revivals led by thundering evangelical ministers. Everyone starts talking about religion, and about conviction and redemption and whatnot. Evangelical church membership jumps up, and sometimes we get new religious movements and denominations. The Third Great Awakening gave us the YMCA – and we seem to have had five of these awakenings. Then we fall asleep again, or things get back to normal. These recurring waves of piety and denunciation – with their calls to transform the nation into a nation that would make Jesus proud – break on the rocks of everyday secular life. Go to work, pay the bills, wash the car, get the kids to their soccer game – and save the God stuff for Sunday. Salvation is an abstraction – and the only thing that will transform the nation is those fools in Washington finally doing something useful for a change, for the common good, not their own good.
Many of them say they’re Right with Jesus. Who cares? The problems are secular – the stalled economy, except for the rich, the crumbling infrastructure, college out of reach unless the kid is willing to take on a hundred-thousand-dollar debt, at a minimum, with no job after graduation. One fifth of the population is living in poverty. There seems to be a mass murder every other week. Cops seem to think they can shoot anyone they want, usually unarmed black kids. There are terrorists out there too. None of this has to do with religious conviction and sweet redemption. Talking about that is falling asleep, not awakening. What we need is a political Great Awakening of some sort.
We may have just had one of those. This was the week that America woke up from its long conservative slumber. Things went bad for the Republicans after the skinny white kid – high on dreams of starting a race war to rid America of those black folks who were taking over and raping our women – murdered nine folks in the most historic black church down in Charleston. This was racial resentment of the kind Nixon had stirred up with his Southern Strategy – that Lee Atwater stuff – that has won Republicans many an election since and is now a staple on Fox News. “Those people” are the reason that your lot in life is miserable. The skinny white kid had that whole argument down cold, and he took it to its logical end. There was no getting around this. That’s what Republicans had been saying too – so they shut up. Racial resentment suddenly lost its aggrieved noble glow. Folks woke up.
Then things got worse with the Confederate flag. The skinny white kid had that Confederate flag thing going and was into that that Cause of the Confederacy thing too. There was a sudden nationwide movement to strip symbols of the Confederacy from public parks and buildings, license plates, internet shopping sites and retail stores – because the Confederate flag is directly tied to the Confederate cause, and the Confederate cause was white supremacy. That finally sunk in. The Republicans then collectively admitted, one after another, that the Civil War had been a bad idea in the first place. Go ahead. Dump the flag. Remove the statues. They are the de facto party of the South and they walked away from the South. They threw away the Bubba vote. Folks woke up and saw what they had been up to.
The Supreme Court then ruled that four misplaced words in the massive Affordable Care Act didn’t negate the whole thing. The final attempt to get rid of Obamacare failed, and it’s working just fine. The Supreme Court wasn’t asleep, and they also saved the Fair Housing Act of 1968 – Texas cannot use its tax subsidies for housing development to keep “those people” (blacks and Hispanics) out of the “good” parts of town, claiming they meant no harm – and this was the same Supreme Court that gave them Citizens United and two years ago gutted the Voting Rights Act of 1965, allowing them to make sure none of “those people” ever voted again. They didn’t expect that – but there was an awakening, again from the nation’s long conservative slumber. It had all been a bad dream.
The week of America’s political Great Awakening finally ended with the biggest eye-opener of all:
A deeply divided Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live. The court’s action rewarded years of legal work by same-sex marriage advocates and marked the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence.
Marriages began Friday in states that had previously thwarted the efforts of same-sex couples to wed, while some states continued to resist what they said was a judicial order that changed the traditional definition of marriage and sent the country into uncharted territory.
Yeah, that may be so, but it was time to wake up:
Justice Anthony M. Kennedy, who has written all of the court’s decisions recognizing and expanding gay rights, said the decision was based on the fundamental right to marry and the equality that must be afforded gay Americans.
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
All four of the court’s most conservative members – Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. – dissented, and each wrote a separate opinion.
The common theme in their dissents was that judicial activism on the part of five members of the court had usurped a power that belongs to the people.
“If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision,” wrote Roberts, who for the first time in his tenure marked his disagreement with a decision by reading part of his dissent from the bench.
“Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it,” he wrote.
Scalia called the decision a “threat to American democracy,” saying it robs citizens of “the freedom to govern themselves.”
They didn’t like the morning light, but someone else did:
In a statement in the White House Rose Garden, President Obama hailed the decision: “This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts. When all Americans are truly treated as equal, we are more free.”
And Justice Kennedy was clear about that:
Kennedy did not respond directly to the court’s dissenters, but he addressed the argument that the court was creating a constitutional right. The right to marriage is fundamental, he said. The difference is society’s evolving view of gay people and their rights, he said.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest” he wrote. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
The Chief Justice went the other way:
Roberts rejected a comparison to Loving v. Virginia, in which the court struck down bans on interracial marriage. That did not change the age-old definition of marriage as between a man and a woman, he said. He raised concerns that the decision could lead to polygamous marriages – he mentioned a married threesome of lesbians called a “throuple.”
He noted that voters and legislators in only 11 states had authorized same-sex marriages, and said it was better for gay marriage to be adopted through the democratic process than by judicial order. He said religious leaders could take little comfort from the majority opinion that their beliefs would be respected.
That theme was picked up by Alito in his dissent. He said there could be “bitter and lasting wounds” from the decision and warned that the decision will be “exploited by those who are determined to stamp out every vestige of dissent.”
Jeffrey Toobin, the staff writer at the New Yorker and the senior legal analyst for CNN, suggests much of this has to do with conservatives and religion:
In the late nineteen-fifties, Richard Loving and Mildred Jeter met and fell in love amid the sleepy small towns and picturesque horse farms of Virginia’s Caroline County. Loving was white and Jeter black (as well as Native American), which meant that the state’s Racial Integrity Act of 1924 forbade them from marrying each other. So, in 1958, they stole off to Washington, D.C., to tie the knot, and then returned home to live as husband and wife. Soon after the couple moved back to Virginia, however, the local police, acting on an anonymous tip, raided their home and arrested them for violating the ban on what was called miscegenation. The Lovings challenged the basis for the prosecution, but the trial judge, Leon Bazile, explained why the case against them should stand. “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents,” he wrote. “And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” In light of this ruling, the Lovings decided to plead guilty and accept, in lieu of a prison sentence, banishment from Virginia for the next twenty-five years.
They took that to the Supreme Court and won, but Toobin is more interested in the underlying confusion:
The gritty business of passing laws is left to the people’s representatives, who answer, in the first instance, to their constituents, and defer, at least in theory, to the Constitution. The record of politicians who claim, in anything more than a general way, to be doing God’s will is dubious. Too often, assertions of divine guidance spoken in state capitols (as well as in the Capitol) have turned out to be little more than bigotry dressed in clerical garb. This is why, at least in theory, we have a Supreme Court. In their best moments, the Justices apply the careful scrutiny demanded by the Fourteenth Amendment – for equal protection of the laws – against any government official’s clairvoyance about God’s intent. That is what happened in 1967, when the Supreme Court finally heard Loving v. Virginia and ruled that all anti-miscegenation statutes must fall.
And that is what the Court did on Friday, in Obergefell v. Hodges, a case that is, in every sense except ease of pronunciation, the modern analogue to the Loving case. In the current opinion, the Justices ruled five-to-four that states may no longer bar same-sex marriage, just as in Loving they said that states could no longer forbid interracial marriage. Justice Anthony Kennedy’s opinion features a good deal of the fulsome rhetoric for which he is known, but it also contains a core of decency that leads to the resolution. Ultimately, though, the case is pretty simple.
The government confers a bundle of rights on individuals who choose to marry. The constitution’s guarantee of equal protection forbids any state from withholding those rights from the class of people who happen to be gay. End of story.
Someone needs to wake up:
The four dissenters in the case work themselves up, in varying levels of frenzy, in disagreement, but their position is also fairly simple to understand. They say that the issue of same-sex marriage should be left to voters, not to unelected judges. As Chief Justice Roberts wrote, in a seemingly Wikipedia-assisted dissent, “the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
We think we are judges, Kennedy replies, doing our job to make sure that the law treats everyone equally.
And that’s where this turns religious:
Supporters of marriage equality have won the political and legal argument by such an overwhelming margin that opponents have chosen to conduct a religiously themed retreat into victimology. Their theory is that, by living in a society where there is marriage equality, their right to practice their religion is being violated. After the Court’s decision, Texas Governor Greg Abbott said, “Despite the Supreme Court’s rulings, Texans’ fundamental right to religious liberty remains protected. No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.” Bobby Jindal, the Louisiana Governor and Presidential candidate, asserted that the decision “will pave the way for an all-out assault against the religious-freedom rights of Christians who disagree with this decision.”
We should be clear about the “liberty” interest being asserted here. Abbott, Jindal, and their allies are positing a right to discriminate – for local officials to refuse to conduct same-sex weddings, for photographers and bakers to refuse to do business with gay people, for wedding planners to advertise that no gay couples need apply. Their actions are the linear descendants of the Virginia officials who claimed divine guidance for their prohibition on interracial marriage.
Toobin is not impressed:
The First Amendment allows individuals to believe anything they want, but it does not allow them to use their beliefs as a license to discriminate in ways that would otherwise be limited by law. No one, at this late date, would claim a religious inspiration for a florist to refuse to sell flowers to an interracial wedding or for a magistrate to perform one; they should not have the right to refuse to do business for a same-sex wedding, either.
In all likelihood, many of these rear-guard actions against marriage equality will soon fall of their own weight. Like so many of their fellow-Americans, wedding photographers and the like will make their peace with the new rules that guarantee their neighbors an equal chance at happiness. (Besides, they need the business.) The story of same-sex marriage is one of the great civil-rights successes in American history, and the protests of a few dead-enders shouldn’t dampen the celebration.
In short, the nation woke up. That was happening all week, but in this case Antonin Scalia was having none of it:
In the course of just nine pages, Scalia calls the opinion of Justice Anthony M. Kennedy, with whom he has served on the court for 28 years, “a judicial Putsch,” “pretentious,” “egotistic,” “silly,” and filled with “straining-to-be-memorable passages.”
“This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” Scalia wrote. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
In unusually personal terms, even for Scalia, he mocked Kennedy’s opening sentence.
“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag,” Scalia wrote in a footnote. “The Supreme Court of the United States has descended from the disciplined legal reasoning of [legendary former Chief Justice] John Marshall and [former Justice] Joseph Story to the mystical aphorisms of the fortune cookie.”
And there’s more:
“Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact – and the furthest extension one can even imagine – of the court’s claimed power to create ‘liberties’ that the Constitution and its amendments neglect to mention.”
In what seems like an attack on the very institution of the court, Scalia derides its makeup, including where the justices studied, where they go to church, where they come from – all by way of saying they have no right to make social decisions for the population.
“Take, for example, this court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single south-westerner or even, to tell the truth, a genuine Westerner (California [where Kennedy hails from] does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges…” …
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation,” Scalia wrote.
“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.”
And then his head exploded. Robin Abcarian saw that happening to another Justice:
Every civil rights victory seems to produce a new, imaginary class of victims.
You might have thought that today’s landmark Supreme Court decision represented the end of discrimination against gays who want to marry. But according to one dissenting justice, the decision instead represents a threat to another group of citizens.
Who might they be? People who oppose gay marriage.
Incredibly, Justice Samuel Alito fretted that it won’t be safe to knock gay marriage anymore.
“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” he writes, “but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
She says that this is hardly an argument against gay marriage:
Instead, it’s an apt description of how social pressure works: If you worry about being labeled a bigot for expressing the view that certain people should not be entitled to their civil rights, then perhaps you should keep your views to yourself. Or rethink your position.
Alito also worries that “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”
But gays who want to marry have exceedingly traditional ideas; otherwise they wouldn’t have fought so hard for the right to participate in one of society’s most common and revered rituals.
These guys are amazing:
Justice Scalia is getting a lot of attention today for his loopy dissent – implying that California is not part of the Western United States, invoking hippies as experts on intimacy and insulting his colleagues as “pretentious,” “egotistic” and “incoherent.”
But Alito veers dangerously close to Scalia-style hysteria when he worries that legalizing same-sex marriage will unleash an urge for retribution among gays and lesbians, who will – what? – raise their tasteful pitchforks against the conservatives who have thwarted them for so long?
“Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play,” writes Alito. “But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”
How can he fail to grasp that the nation has already experienced bitter and lasting wounds from the despicable way it has treated its gay citizens? The affronts, insults and murders over the last half century are far too numerous to recount.
Someone needs to wake up, but at least President Obama did:
Wrapping his words in the cloak of a church sermon, deploying the inflections and oratorical rhythms of a pastor, Barack Obama delivered one of his most searing speeches on modern race relations in America at a funeral service in Charleston on Friday.
In the course of eulogizing Reverend Clementa Pinckney, the pastor of the Mother Emanuel African American church who was shot dead in his own sanctuary along with eight of his flock last week, Obama addressed several of the most contentious debates that have erupted since the shooting.
He referred to the gun rampage by an avowed white supremacist as an act of terrorism, linking it to America’s long history of racist church bombings and arsons.
He said the shooting was not a random act, “but a means of control, a way to terrorize and oppress”. He said the alleged shooter, who he did not name, had imagined his deed would “incite fear and recrimination, violence and suspicion”, as “an act that he presumed would deepen divisions that trace back to our nation’s original sin”.
It was time to wake up:
In the course of a eulogy in which Obama had the audacity to sing Amazing Grace in front of a rapt audience of 5,500 mostly African Americans in the College of Charleston TD Arena, the president also made a robust case for the tearing down of the Confederate flag. As debate continues to rage over the enduring presence of the old secessionist symbol across much of the Deep South, Obama said bluntly that the flag was a “reminder of systemic oppression and racial subjugation”.
The flag did not cause the murder of nine churchgoers at a Bible-study meeting on 17 June, Obama said. “But as people from all walks of life – Republicans and Democrats – have acknowledged, the flag has always represented more than just ancestral pride.”
He said taking down the flag from the grounds of South Carolina’s state capitol in Columbia “would not be an act of political correctness, it would not be an insult to the valor of Confederate soldiers, it would simply be an acknowledgement that the cause for which they fought – the cause of slavery – was wrong.”
And there was more:
He also touched on police brutality towards black communities, endemic poverty in many African American neighborhoods and Republican attempts to introduce new voting laws that would make it more difficult for people to cast their vote.
“None of us can or should expect a transformation in race relations overnight,” Obama said, adding that whenever a tragedy happened such as the massacre at the Mother Emanuel church in Charleston there were calls for a debate.
“We talk a lot about race,” he said. “There is no short cut, we don’t need more talk. People of goodwill will continue to debate the merit of various policies as our democracy requires. There are good people on both sides of these debates. Whatever solutions we find will be incomplete. But it would be a betrayal of everything Reverend Pinckney stood for if we allow ourselves to slip into a comfortable silence again. To go back to business as usual as we so often do.”
We cannot ever go back to sleep:
He said that after a week of reflection on the Charleston shooting he had concluded that what was required now was “an open heart.”
“That, more than a particular policy or analysis, that’s what I think is needed.”
Then, after what must be one of the longest pauses he has ever held in the middle of a public speech, the president of the United States began to sing Amazing Grace. The arena burst into song alongside him.
That may or may not mark our sixth Great Awaking here in the United States, but it was the first Great Political Awakening we’ve had. We’ve been listening to the conservatives, assuming they made some sort of sense, since the Reagan years. Then all this happened. This was the week the whole nation woke up.