Obama, Holder, Verrilli and the Mark of Civil Rights History

Leaving aside the heinous 3/5 compromise set forth by James Wilson and Roger Sherman at the founding Philadelphia Constitutional Convention, American history is marked by significant moments of dedication to civil rights for its citizens. Far from perfect, it has been a struggle and evolution. As Ralph Waldo Emerson noted:

Nothing great was ever achieved without enthusiasm.

Which is certainly true, from the Founding Fathers, to Lincoln and the Emancipation Proclamation, to the 19th Amendment protecting the right of women to vote, to the Civil Rights Act of 1964, moments of enthusiasm, sweat, toil and, eventually, greatness mark the struggle for equality for all in the United States.

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case. The case for full equality in Hollingsworth has been made beautifully, and strongly, in the Respondent’s Brief penned by Ted Olson, David Boies, Theodore Boutrous and Jeremy Goldman.

But there is still a missing voice in the discussion, that of the United States government. The government has the voice, and spoke it loudly in the DOMA litigation, first in a policy declaration letter to Congress, then in lower court briefing and finally in Supreme Court briefing. Mr. Obama’s initial policy declaration noted that we must “suspicious of classifications based on sexual orientation” and concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Indeed that is true, but it only takes the equality movement so far, it still leaves room and ability for bias against sexual orientation by individual states, most notably on the front of marriage equality, but potentially a host of other invidious modalities as well.

That is not good enough. It is time for the government, by and through the Obama Administration, to take the final step in cementing full equality for all citizens, not just as to the federal government, but as to the states as well. The government needs to file an amicus brief supporting full equality in Hollingsworth v. Perry.

Three men are in the crucible – President Barack Obama, Attorney General Eric Holder and Solicitor General Donald Verrilli, Jr. History will remember these men either way, but they have the opportunity to be remembered among the giants in civil rights history. It is a defining moment for their once and future legacy.

What a major moment in history this is, and will be, if the if the Obama Administration Solicitor General files a brief in support of full heightened scrutiny based protection for sexual orientation.

It brings to mind the scene from “Lincoln” where President Lincoln says

“Now, Now, Now”

and forces the 13th amendment through because “Now” was the moment to eradicate slavery in one fell swoop and waiting posed unconscionable risks and further damning inequality.

Such is exactly the time and place now as to the last recognized measure of fundamental equality, sexual orientation. The Perry Plaintiffs’ team has argued well in their brief for the broad principles of due process and equal protection heightened scrutiny that would resolve these issues “Now”. All the stars are aligning. Prominent Republicans have filed an amicus brief. So too a broad swath of leading American businesses. Openly gay Congress members are calling for it.

Now is the time to seize the moment and eradicate discrimination across the board against gay men and women. This is the moment for enthusiasm, and President Obama, Attorney General Holder and Solicitor General Verrilli have a historic opportunity to help make it happen. This is the moment, and they need to step up. Great men take such great steps.

The time is “Now, Now, Now”.

File the amicus brief for full equality in Hollingsworth v. Perry gentlemen.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
10 replies
  1. marcel says:

    RE: 3/5ths compromise (i.e., a bit off topic of the OP)

    I’m in the middle of a monograph (i.e., I cannot tell you how it turns out) where the premise is apparently that the 3/5ths compromise was not something that intended to declare slaves 3/5ths of a human being: it was actually more offensive (see b below).

    a) the compromise was carried over from a formula for assessing taxes during the Confederation period before the Constitution was approved.

    b) representation in the national government was to reflect wealth and it was generally agreed that for non-slave states, population was a reasonable proxy for wealth.

    b1) in the absence of slaves, most wealth was agricultural and most people lived on farms

    b2) for the slave states, however, slaves were far and away the single largest part of wealth, so (free) population of southern states was not a good proxy for wealth there.

    b3) the agreed solution was that for purposes of approximating wealth, slave = 3/5ths of a human was about right, so this was the appropriate way to measure the size of states in allocating representation.

    c) there was a possibility that the compromise would not have been carried over, but once equal representation of states in the Senate was agreed to, populous Southern states insisted. From this point, the rest of the story that we are familiar with seems to go through…

    At that time, I think VT was the only state in the country that did not have slavery, but the writing was on the wall in the large northern states, and less so in the others. Even, I think, in MD and DE. Remember, this was before short fiber cotton and the cotton gin. The dominant crops in the US where slavery was important were (I think) tobacco and rice, and while the slave holding class was then large, those who thought of its future thought that it would decline in time, outside of GA, the Carolinas and perhaps VA. So slavers (e.g., Patrick Henry) wanted to ensure a house of congress that they could control once slavery disappeared outside their region, largely to prevent the then nascent abolitionist movement from ever being able, by law, to deprive them of this form of property. (An undercurrent in the book is that it was a widespread view that rights on paper were all very well and good, but a legislative body was going to do what it was going to do, irrespective of any stinking constitution. Therefore, it was necessary to ensure that the legislative body was “properly” formed.)

    The monograph is A Slaveholders’ Union, G.W. v. Cleve, 2010, Univ. of Chicago Press.

  2. What Constitution? says:

    Hear, hear, bmaz! When looking around for a “legacy”, wouldn’t it be nice if Obama and Holder could consider the possibility of coming down on the right side of the fundamental principle that all people “are created equal”?

  3. mm says:

    @bmaz: It doesn’t change the ugliness but the argument coming out of the Articles of Confederation wasn’t actually about whether slaves were persons. The original compromise (built on questions of requisitions of funds from states–that Congress had no taxing power) was based on a judgement about the productivity of “free” to slave labor. The assumption was that someone working as bound labor would be less productive and thereby would produce less wealth.

    The confusion arises because in the Constitution of 1787 it got linked to representation where it was not only ugly and absurd but where it used the slave population to give greater power to slave owners. The effect of counting the enslaved (who were not being represented) as if they were being represented only strengthened the power of those holding them in bondage.

  4. Phil Perspective says:

    This is the moment for enthusiasm, and President Obama, Attorney General Holder and Solicitor General Verrilli have a historic opportunity to help make it happen.

    Did Verrilli argue today’s VRA case?

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