December 13, 2012


Civil rights is a difficult legal concept for many people. I am not sure why this is true, but it must be true because there's a considerable amount of contention around civil rights.

The problem with civil rights is how to define them. Historically, one of the principal ways in which civil rights legislation has happened is in response to a perceived wrong. We propose to address a wrong by specifically addressing that wrong with a statement about what is right. That does not seem like such a bad idea, on the face of it, until one examines some of the consequences.

Our legal system lives and dies by precedent. The first thing an attorney will likely ask about any legal matter is, did it happen before? ;If it did, what was done about it then? If it is different now, what has changed? Because the law is very unwilling to make changes for the sake of change. If it was done in some way differently in the past, you have to provide a pretty clear and compelling reason for doing the thing differently today, or the law will just continue with business and usual.

Unfortunately, business as usual is usually a state of affairs is unjust to somebody somehow. Let us take the civil rights of race as an example. For hundreds of years in North America, slavery was not only legal, it was protected by the law. It was part of the economic landscape and this country's laws are mostly about economics one way or another. Very specific, powerful interests collectively worked to effect changes in the law to favor their brand of economic success. At the same time, some other folks banded together out of a sense of injustice and moral outrage. They suggested that it was unreasonable to make some people (black people) shoulder the burdens of a system that did not benefit them, but which profited some other people (white people) for no particular reason other than a vague kind of historical competitive advantage.

That argument went on for decades and resulted in a civil war. Even that amount of upheaval was insufficient to actually deal with the realities of racial inequality and prejudice, which are with us to this day, albeit substantially improved from the legal status quo of 150 years ago.

So now, we are still extending legal rights and civil recognition to people who formerly were without legal means to redress crimes committed against them. Black people, brown people, yellow people, Jews, the disabled, gay people, lesbians, transgender people, … sometimes the list seems pretty long. But there is a problem here. Every time you get specifically specific about the kind and quality of people that the law shall embrace, you are also specifically specifying who the law shall not protect.

The law is very persnickety. If you say something is not allowed between this person and that person, you may find it is perfectly permissible for everyone else. similarly, if you say that this particular person is accorded this particular right, you may find that the rest of us have no right. For example, if you say that both black people and white people will have the right to marry, you may find that black people and white people may marry, but not each other, as was the case in this country until embarrassingly recently.

In many states, we now have numerous laws prohibiting discrimination on he basis of race, color, creed, and religion. Some states add sexual or gender orientation to this list. Most do not. This means that in most states, some discrimination against some people is perfectly legal.

If this seems counter intuitive to you, then I agree with you. If something is wrong, ti should be wrong for anybody to do it anywhere and we ought to pass laws that say this. I don’t want to be turned down for a loan because I am a Muslim woman or because I am a Jewish lesbian. I do not think anyone ought to face this kind of unreasonable, restrictive prejudice. They ought to have a law.

Well, for a long time, we have had a piece of legislation worming its way through the federal bureaucracy that was intended to level out the crazy quilt of different laws in the states and give people equal protection under the law, as required by the Constitution. It is called ENDA - the Equal Non-Discrimination Act.

OK, so what is the problem? We cannnot seem to get this legislation passed. It keeps almost getting come up for a vote but gets legally maneuvered off to a back burner. Sometimes it gets rewritten into a form completely unlike it's original incarnation, then it gets redrafted and proposed again, only to get shunted off the main line again. Is it a perfect piece of legislation? Hardly. Is it better than nothing? Probably.

But in the end, what we need is a general policy, not just another in a long line of finicky qualifications: ENDA would be an improvement, but it is still to specific. It excludes as many as it protects. What we really need is a broader understanding from our laws as interpreted practically by the courts: that there is just one kind of human being and that the laws should be equal for all human beings, period. Does not matter if you are a man or woman, transman or transowman, gay straight, Baptist, Jew, Hungarian-American or VietNamese-American - all of us should be on an equality absolute with everybody else. And it would be nice, too, if we could have this equality extend economically so that not just rich people got the justice promised by the law (though that would take even more change).

Laws are often made to address what ought to be the case, even if it is not very practical at the present moment. When Brown vs the Board of Education came down, it came down the the understanding that some things were just right, even if they were not easy. When Roe vs established the legal principle that women control their own bodies, it was not intended to reverse all evil or cure every wrong against women in the legal system. We should all work toward promoting good legislation like ENDA and to make it consistently more inclusive until our civil rights become everybody's rights, without distinction. Rights denied to some are rights nobody has.

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