States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
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The More Things Change

The battle at the Indiana Statehouse over adding “four words and a comma” to the state civil rights law has brought back some interesting memories.

I first began writing a column for the Word, a newspaper serving Indiana’s gay community, some 25 years ago. I stopped when the Word changed ownership, but the new editor (an old friend) asked me to come back, and I agreed.

Then I did something else.

I went into my files and reviewed some of my earliest Word columns. That review left me with two contradictory impressions: how dramatically things have changed—and how little.

Here, for example, are excerpts from a column from the year 2000. Just 16 years ago.

My youngest son recently attended the wedding of two co-workers. It was a lovely affair—formal, at an expensive Chicago hotel, conducted with meticulous attention to detail.

The program book included a message from the bride and groom, reciting how enthusiastic they were to enter into wedded life together, how sure they were that matrimony was the right choice for them. In fact, they said, there was only one hesitation, one fact that gave rise to a certain reluctance to marry: the fact that others were legally prevented from doing likewise. It seemed unfair that the status of matrimony was available to them, a man and a woman, and not available to others merely because they were of the same gender. The message concluded with a request that those present, who had shared the happy day with this particular couple, work toward a time “when everyone can enter into the institution of marriage and have their union recognized by society and the state.”

I couldn’t help thinking about the implications of this simple, powerful statement….

What would happen to the pervasive bigotry against gays and lesbians if hundreds, then thousands, of heterosexuals added similar paragraphs to their wedding programs? What if every church and synagogue that believes in human dignity added such language to their bulletins? What if businesses catering to families advertised for business by interpreting “family” in an inclusive and affirming way?

That would change the world.

What a contrast I see between my son’s friends and the group of shrill and homophobic clerics who called a press conference in Washington last week to announce that God hates homosexuality…

I am confident that, if there is indeed a judgment day, a good and just God will offer a special place in heaven to the young couple whose love extended beyond each other to embrace the human community and all its members.

The real question is, how would that good and just God respond to those who used the name of the Lord to justify their hatreds and excuse their bigotries?

As we now know, what did “change the world” was the courage of thousands of LGBT people who refused to live dishonestly and who “came out”–often with the support of their families and allies, but sometimes in the face of enormous hostility.

Last year, marriage equality became the law of the land, and survey research tells us that solid majorities of Americans now endorse marriage equality and support the extension of full civil rights protections to the gay community.

What didn’t change, of course, is the fury of the religious extremists—including Indiana’s Governor—who continue to use their religions and their crabbed versions of Deity to justify homophobia and discrimination. They are out in force to keep the Indiana General Assembly from adding sexual orientation and gender identity to Indiana’s civil rights law. Their persistence is why the rest of us can’t rest.

Not yet.

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Why the Legislature Should Rip Off the Bandaid

When I was a child and scraped a knee or otherwise required a band-aid, I would dread removing it. Eventually, I learned that it hurt more to try peeling it off bit by bit than it did if I just gave it a good yank.

Fast forward to the Indiana General Assembly, and the back-and-forth about “four words and a comma.”

Leave aside all the rhetoric. Ignore who’s “right” and who’s “wrong,” and just look at the political realities.

If the legislature fails to extend full civil rights protections to LGBT Hoosiers, three things are guaranteed to happen: there will be a replay of the economic boycotts that threatened to knee-cap the state during the RFRA disaster; the business community will take out its anger on Republican officeholders (beginning with the Governor, but definitely not limited to His Holiness); and–worst of all, from the perspective of lawmakers trying desperately not to take a position on the issue— the battle will return in the next session. And the one after that, if necessary.

This is an issue that is crowding out other important matters that lawmakers need to address: infrastructure financing, education, economic development. It will continue to “suck the air” out of the legislative process until it is resolved. (And weenie bills with lots of caveats won’t cut it.)

Proponents of “four words and a comma” will come back again and again until those words and that comma are inserted into Indiana’s civil rights law. Furthermore, the ultimate success of their efforts really isn’t in doubt—as Bob Dylan said, you don’t need a weatherman to know which way the wind is blowing. Prolonging the agony is like peeling back that band-aid a painful bit at a time.

Senator Long seems to understand that. Others, not so much.

Hint to Indiana lawmakers: It will hurt a lot less if you just rip that band-aid off and do the inevitable sooner rather than later.

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The State of the Governor

So–I poured a stiff drink and listened to Mike Pence deliver (his version of) the “State of the State.”

The word “smarmy” comes to mind.

There is much that might be said about this particular effort to put lipstick on a pig–the state he described is not one I recognized, nor the state that widely available data describes.  (My son, with whom I was watching, asked what grade I would give a student whose assignment was to deliver an accurate assessment of Indiana’s economic and social well-being and utterly failed to do so.)

There were some truly cringeworthy moments. The Governor, you may be surprised to learn, is “honored to be the Commander in Chief” of Indiana’s National Guard. At the conclusion of the forced, wooden speech—a pastiche of talking points and trite adages that met with dutiful but definitely not enthusiastic applause—he declaimed several lines from  “On the Banks of the Wabash.”

The part of the speech that the entire state was waiting for—the Governor’s position on extending state civil rights protections to LGBT Hoosiers—came at the end, and the Governor’s discomfort was palpable.

Pence assured everyone that he had “prayed” about the issue. (Clearly he hadn’t thought about it—but then, nothing in the speech gave evidence of much thought.) He reprised his “Hoosiers are good people who don’t discriminate” mantra and then engaged in a rambling discourse about the importance of religious liberty.

Bottom line: he won’t sign a bill that deprives religious folks of their ability to act on their beliefs everywhere—including at work.

There are two rather obvious responses to that declaration, one legal and one political.

First, the Constitution protects citizens’ right to believe anything. Full stop. It does not, however, protect an untrammeled right to act on the basis of religious doctrine. If my sincerely held religious belief requires me to sacrifice my first-born, or take drugs, or murder abortion doctors, or cheat nonbelievers, the government has the right to step in and say “too far.”

People of good will can disagree about the specific rules that are necessary to a fair and functioning society, but the Constitutions of the United States and Indiana have never been interpreted to privilege socially harmful behaviors simply because those behaviors are religiously motivated.

Second—and here, I admit to more than a bit of shadenfreude—Governor Pence has wedged himself firmly between a political rock and hard place.

The religious extremists who have always been his base will desert him in a heartbeat if he signs any bill that, in their eyes, “legitimizes” LGBT Hoosiers. Meanwhile, polls confirm that a solid majority of Indiana voters support adding “four words and a comma” to the state’s civil rights statute. And given this administration’s other blunders—its unremitting war on public education and  Glenda Ritz, the proposed “news bureau,” the lack of attention to Indiana’s crumbling infrastructure, etcetera etcetera—Pence simply does not have political capital sufficient to weather widespread disapproval of this particular culture war battle.

The wooden and forced delivery of last night’s platitudes suggests that the reality of his position is beginning to dawn on our “Christian soldier” Governor.

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What is with the Fixation on Potties?

Oh, Indiana! You have so many virtues….and so many legislators with questionable reasoning abilities. The legislative session that just began promises to be a bonanza for those who enjoy black comedy and unintentional irony.

For those of us who want adult government, not so much.

A major focus of the upcoming session will be the effort to add four words and a comma to Indiana’s existing civil rights law.  In the aftermath of last year’s RFRA debacle, business and civic organizations have partnered with LGBT organizations and faith communities to lobby for the addition of “sexual orientation” and “gender identity” to the existing list of things (race, religion, gender, etc.)that Hoosiers can’t use as reasons to discriminate against other people.

All of these characteristics should be totally irrelevant to an individual’s right to rent an apartment, enroll in an educational institution or buy goods and services in the marketplace.

Four words and a comma. It’s not rocket science.

Lawmakers who really do want to discriminate but want to pretend otherwise have come up with all manner of convoluted bills to allow disparate treatment to continue. Others have simply abandoned the pretense, offering proposals that, if passed, would tell the world that Hoosier Hospitality is a highly selective concept.

And the world has noticed. This is from Talking Points Memo:

An Indiana rep recently proposed a bill that would hit transgender individuals with a Class A misdemeanor if they used a public restroom that doesn’t conform to their gender at birth.

I can see the signs now: Before using this potty, please deposit your DNA sample with the attendant…..

The whole potty fixation is a mystery to me. I was just in New York—I know, a den of iniquity—and most of the public restrooms I used were “one at a time” facilities available to either gender. (If you’re really worried about who uses which toilet, I have a suggestion: Get a life!)

This bill should die a quick death. Last year, similar bills failed to pass in Kentucky, Florida, Nevada and Texas (hardly liberal bastions), and the Department of Justice has declared that restricting transgender students’ access to public restrooms amounts to sex discrimination under Title IX, but hey–this is Indiana.

Even Georgia doesn’t want to be “the next Indiana.” 

For a legislature dominated by self-described proponents of “limited government,” the bills submitted thus far certainly are a mixed bag. On the one hand, our “small government” Christian conservatives are proposing a bill that would effectively  outlaw abortions (no terminations after a heartbeat is detectable–about the same time most women find out they’re pregnant). On the other hand, it’s hard to square that “pro life” position with the bill allowing habitual drunks to buy guns, the bill removing the need to license guns, the bill to allow guns on college campuses…

Maybe they want to be able to shoot people they think are using the wrong potty?

In any case, if the “wrong toilet” and gun bills pass, I’m moving to a saner state….Evidently, there are a lot of them.

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