No place for minorities on the Roberts Court

A majority of the Supreme Court of the United States thinks we are a post racial country, while at the same time, a traditionally prayerful one. In two decisions over the last three weeks, we have been told that religion and public prayer can be mutually exclusive, even as that prayer affirms a specific religious faith, and that affirmative action as a policy for equalizing opportunity for higher education among our diverse racial make up is itself racist.

In Town of Greece v. Galloway, regarding Christian prayer at public meetings, those who dissented did so not merely because they are considered the more liberal justices. They are the minority not just because they came up on the losing end of a Supreme Court vote. It was, in fact, the Jewish justices, along with Justice Sonia Sotomayor, who objected to the case’s outcome. (The only other minority on the Court, Justice Clarence Thomas, voted with the majority, and went farther right than Scalia by saying that the states can set their own rules about religion, seeming to conclude that the Establishment Clause in the First Amendment only applies to Congress.)

Anyone who is part of a minority faith in this country understands the implicit persecution about which the respondents in the case complained. This isn’t whining by some people for whom, as the majority wrote, “the prayers gave them offense and made them feel excluded and disrespected.” Of course Christians are allowed to worship as they choose. We all are.

This is striving for a more perfect Union of thought, faith and freedom. But since the First Amendment doesn’t say, “be sensitive to the feelings of other faiths,” the Court finds the Greece, New York, town council’s behavior to be consistent with the Establishment Clause. Too bad you are offended, based on your faith. That’s not unconstitutional.

The majority in the case said “prayer has become part of the Nation’s heritage and tradition.” If that is the criteria that allows for sectarianism in the public square, then it’s amazing that something as traditionally American as “Separate but Equal” is no longer the law of the land. After all, the Founding Fathers owned slaves. Doesn’t the Court’s decision here imply that if it’s part of our nation’s “heritage and tradition,” then it’s okay to engage in it?

The historical context of the decision is based on the fact that there has been prayer in Congress since there’s been a Congress. But the Court’s minority, who agreed with the plaintiffs, distinguish the town council in Greece, NY, because rather than being a legislative body where members may, sit, stand and mill around during a religious convocation, dealing only with each other, a municipality has a different dynamic:

“Greece’s town meetings, by contrast, revolve around ordinary members of the community. Each and every aspect of those sessions provides opportunities for Town residents to interact with public officials. And the most important parts enable those citizens to petition their government. In the Public Forum, they urge (or oppose) changes in the Board’s policies and priorities; and then, in what are essentially adjudicatory hearings, they request the Board to grant (or deny) applications for various permits, licenses, and zoning variances. So the meetings, both by design and in operation, allow citizens to actively participate in the Town’s governance-sharing concerns, airing grievances, and both shaping the community’s policies and seeking their benefits.”

It is reasonable, the minority concludes, that people who are petitioning a town council or board may feel like if they do not participate in the prayer, that the council members will notice and it may go badly for them, as a consequence. It’s not frivolous paranoia. It’s behavior learned from interactions within our Christian majority country.

Just because we are all equal in the eyes of the law does not mean we are all equal in the eyes of those who make the law.

The Supreme Court allows for laws to protect the civic interests of minorities, but also allows laws that protect a society from singling out one group or another for special protection.

Extremists like Justice Scalia basically call out the Fourteenth Amendment as unworkable. “I thought we’ve — we’ve held that the 14th Amendment protects all 
races,” he asserted during oral arguments in the recently decided Michigan affirmative action case, Schuette v. Coalition to Defend Affirmative Action. “I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that.”

And in his own opinion in this decision, he rhetorically asked, “Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” He goes on to plead for overturning any law that uses race to determine policy, like in the case the lower court relied on in its rejection of Michigan’s anti-affirmative action amendment,  where busing as a means to desegregate schools was upheld, despite a plebiscite against it. It “should be overruled,” he wrote.

Even swing Justice Kennedy said, in the majority opinion, “[I]n a society in which those [racial identification] lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own.”

He added that it’s better if voters make these decisions. “Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted.” And, he suggested, “In the realm of policy discussions, the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.”

But it is the courts that make that determination. The gutting of the Voting Rights Act by this Supreme Court took away traditional government checks on the voting rights of minorities, and only left the Department of Justice with the section that puts the decision on those cases in the courts. It’s the only choice, right now.

To the conservative justices on the Roberts Court, the Civil Rights Movement heralded an end to the age of discrimination, and washed the American punim clean of its bigoted past, leaving it to dark history. “[T]hings have changed dramatically,” they said in handing down the voting rights decision, Shelby County v. Holder, last year. They ignore that although the linens may have been laundered, it’s still the same white sheet going on the same, narrow bed frame. Because they are the court of last resort, we all have to sleep in the bed they make.

Maybe they are saying that is the Founders’ original intent, that we are free to complain and lobby for change but it is white, rich and Christian that rule in our so-called republic, and the rest of us should just get used to it. Sure we have a multicultural, African American president, but they expect from him what they expect from the rest of the great unwashed – go along, don’t make waves, and acknowledge the whip they have in their hand.

We may have elected “Change You Can Believe In,” but they hold higher faith in an older saying:

“The more things change, the more they remain the same.”


Further must-read:
Post-Racialism and Shelby County Redux: Justice Scalia and the Logic of Racial Entitlement (ACSblog)

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