Battling the Institutions of Intolerance
In the trenches of fighting for fair and equal justice, the battle is difficult and often discouraging. Plaintiffs and their lawyers must overcome what often seems to be a hopeless no man’s land of procedure, financial costs, and protective politics. If we succeed, then what? Is the local culture magically transformed with all wrongs mended? Once the Court hands down a favorable opinion many activists hang up their signs thinking the battle over and done with.
U.S. history tells us, in no uncertain terms, an opinion from the High Court is only an opening salvo. The true struggle comes in using that hard won precedent to slowly shape hostile practices and local governments into institutions that value equality and fairness for everyone. Only then do our efforts bear fruit.
A grim reminder of how case law plays out with local politics can be found in the Court’s landmark decision Brown v Board, 347 U.S. 483 (1954). Despite the unanimous opinion of Chief Justice Warren’s Court, clearly holding segregation to be unconstitutional, Southern States dug in and fortified their institutions, defying the Federal Government at every turn. United States Senator Byrd of West Virginia stated:
If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South
Senator Byrd wasn’t alone in his opposition, President Eisenhower told the Chief Justice over dinner:
These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.
Eventually, President Eisenhower would reluctantly help enforce Brown and its progeny. It is fair to say, President Eisenhower’s support seemed to come more out of a respect for the rule of law and public safety, than a need for fair and equal treatment of blacks and whites. No credible historian would ever say segregation ended with the Brown decision. History tells us that the violence and hatred within the nation escalated with frightening momentum once the status quo was disrupted. Even now, 60 years later, we still struggle with many of the same issues.
I am reminded of the difficulty of enforcing Brown as SCOTUS prepares to decide same sex marriage. 36 States now recognize same sex marriage. Once again the South is resisting, the big holdouts to same sex marriage are TX, LA, MS, AL, TN, KY, and my home state of GA. The U.S. Supreme Court has recently granted cert to three cases dealing with marriage equality. After reading United States v. Windsor, 570 U.S. 12 (2013), it seems very likely the high court will strike down what’s left of the Defense of Marriage Act and hold same sex marriage as a protected right that is to be respected by all states with full faith and credit. Big smiles all around, until I read a statement by presidential hopeful Mike Huckabee:
This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government. . .
As a Southerner, I find Mr. Huckabee’s comments deeply disturbing. Contrary to common belief, individuals in the Southern States are no more hateful or intolerant than individuals in California, New York, or Chicago. Please understand I am not saying we don’t have our fair share of crazy and I’m not excusing people who are intolerant that live in the South, I am saying there are no more of them here as compared to anywhere else in the nation. What is unique in the South, is a cultural tradition of discriminatory institutions. These are the demons of our past. Like mythical gremlins on a perfectly good airplane, institutionalized discrimination hides within well meaning mechanisms of government.
People who are not from the South often have difficulty seeing the difference. A good example can be seen in our criminal justice system. Most prosecutors, public defenders, and judges in Georgia honestly strive to be fair and unbiased. Most prosecutors I know are not racist or intolerant people, on the contrary they take their job very seriously. Despite that, we incarcerate blacks more than whites, we execute blacks more than whites, and minority offenders often get harsher sentences than white offenders convicted of similar crimes. Again, I will vouch for many of Georgia’s Judges, Prosecutors, and Defenders. They are not racist. The institutions those people work in, is another matter. The public defender system is an excellent example. The public defender system in Georgia is critically underfunded. In order to conserve their resources public defenders are forced to determine which defendants receive services, and which do not. This is unfortunately the state of affairs, 52 years after Gideon v. Wainwright, 372 U.S. 335 (1963), which guaranteed the right to counsel during trial. In many courts, if a person does not qualify for a public defender they are forced to sign a waiver of counsel form. It happens so fast and so often that no one even questions it. If you make just enough money to not qualify for an appointed lawyer, you are forced to waive the right to counsel. That person can certainly go out and reassert the right and spend a few thousand dollars to hire a lawyer, but it is troubling that this is being done on a large scale at arraignments in numerous courtrooms. Compile that practice with a thousand similar ones and you begin to see the old demons at work. They don’t require individuals to operate them, once in place the system operates itself.
Will the same thing happen with same sex marriages? Florida counties are refusing to issue marriage licenses for the sole purpose of blocking same sex marriages. This seems to echo the hateful resistance of desegregation. How will institutions in rural Mississippi, North Georgia, or West Tennessee react to an Equal Marriage Opinion? Will systems be put in place by a few closed minded people that takes decades to undo? I don’t think there will be any comparison to the bigotry that ran rampant in the 1950’s and 1960’s. So no, there won’t be rioting in the streets, churches burning, or civil anarchy, but there will be resistance in some form. Don’t get me wrong, I will be the first to celebrate a favorable decision that finally acknowledges equality to our L.G.B.T. friends, but I would advise civil rights attorneys to keep their phones charged. As we have seen in Brown and Gideon, fair and equal justice takes a while to trickle down.