The recent Supreme Court ruling rendering gay marriages legal across the union has been received with the usual excitement and disappointingly self-righteous arguments on both sides of the fence. I do not want to pretend to know any better, and I trust Americans to make of Obergefell v. Hodges, whatever they may, except I am taken aback at how the Supreme Court forced itself into what is a basically a social issue. It strikes me that a nation of 300 million people can fail convince itself of whether some of its own have a right to choose their marriage partners. In the same breath, I am pleasantly surprised at the increasing willingness by the courts to exercise will and force. Today, I argue that judicial activism in America has never been a solution to its social problems, but it serves to remove legal constraints that often prevent such progress.
Let us face it, the US has a notoriously pretentious and bigoted history. Founded by slave owners who had no qualms declaring that all humans are created equal, the country spent centuries keeping its own people in bondage just because of their race. Even as its leadership promoted freedom and democracy across the world, the CIA split its budget between propping up dictators (that could keep its oil pipelines going) and torturing terror suspects, but I digress. The country, like many others across the world, faces multiple social issues, other than gay marriage. To its credit (and a minority of its brave citizens), while other governments have simply wished away their problems with their hands on holy books, the US has been least shy in addressing these issues, and I should add, it has not blushed however wrong it has been.
The very idea of an entire nation waiting for a few individuals, literally handpicked by the president, is absurd, but so is America’s tendency to legislate away its social problems. The biggest hindrance to social progress in the US has been, and as is evident with civil rights movement, legislations enacted centuries ago, which attempt shape people’s lives today. The consequence of this is that while society, or some part of it, has tried to change, as should be expected, it remains constrained by laws. While some are celebrating the recent decision, I do not believe it solved anything, the struggle against discrimination against lesbian, gay, bisexual, and transgender (LGBT) populations, but it simply removes the legal impediments for possible social changes to occur, if at all. In this respect, LGBTs can learn a valuable lesson from the civil rights movement i.e. Supreme Court decisions or legislations may help, but cannot hurt their cause.
In drawing parallels to the civil rights movement, I am perfectly aware of the dissimilarities of the two issues, but am keener on the experiences of racial minorities in the country, and the difficulty of forcing social change through the courts or legislation. While the Thirteenth, Fourteenth, and Fifteenth Amendments ended slavery and subsequently strengthened their rights, African Americans, and other racial minorities continued to live under extreme discrimination. State legislations enacted laws that effectively mandated racial discrimination, and created a system of Apartheid, by which Blacks were treated lepers. Once again, if you have been following the big matter with some flag in South Carolina (surely it should take a five-year-old girl scout to bring down any flag), America, the champion of freedom and democracy, makes no apologies is saying to Blacks that all animals are equal, although the lighter their skin is, the more equal. The Orwellian hypocrisy is such that white America was stunned when one black woman, a great a woman, decided that she could elect where to seat on the bus. Of course it unconscionable for blacks to vote, let alone black women, since even white women were too lucky to have to choose their leaders- what do they know about politics anyway? It took the courage and determination of Blacks to shake off these laws, and for sadly for some, it cost their lives.
This is an old argument, and in fairness, the two issues are not the same. For once, even African Americans are joining their white compatriots in denying some other Americans equality in marriage, and that is social progress folks. It however, reveals our collective delusion that changing laws alone is sufficient to ensure social change. Even with constitutional amendments no less, racial minorities in the US still suffer the indignity of discrimination, decades after this became illegal. As Matt Apuzo reported for the New York Times recently, the Department of Justice found systematic discrimination against people of colour by law enforcement agencies. In Fergusson, Mo., where the population is only a third white, the police is nearly all white. In just one year, blacks accounted for 85% of traffic stops, 90% of tickets and 93% of arrests. While it is almost impossible for white to be arrested in this city, for those that are arrested, there is still a 68% chance that their cases would be dismissed-because whites do not commit crimes. The impunity with which law enforcement agencies profiles people of colour shows just how little social progress there has been despite decades of such practices became illegal.
Yet again, none of these is a surprise, but it just shows that LGBTs, like racial minorities in America have a long way to go yet. Social change is more than winning a Supreme Court lottery. Yes, it is a lottery, because of the narrow majority in this case, and the fact that this very Court once held that owning slaves was white America’s fundamental right. My argument is whichever way the lottery could have gone, the decision serves to help us see the futility of using laws to shape social change. It removes, or helps us see the laziness of arguments for, or against social change that simply point to the bible, the constitution, or some law in South Carolina. People, who unfortunately, were not all knowing, created these impediments (except for the Bible), and judging by the fact they never invented the internet when it was all there, we can do a lot better than them. We need to face up to our social problems with an open mind and be willing to think them through, as against resorting to laws, or the Bible.
The descending opinion considered the decision to amount to the court making decisions that only the electorate and by extension, the legislature should make, and forcing society to alter its understanding of marriage. Of course, the court’s comparison to of the gay marriage situation to slavery and interracial marriage prohibition is unmissable, if only for its persuasive power. Justice Roberts argues that the ruling would be used against Americans who are unwilling to accept the equality or even the suitability of gay marriages. He points to the comparison of traditional marriage laws to the discriminatory laws against women and racial minorities, as a trump card that LGBT rights activists would seize on to fight any dissent. Conservatives on the bench and across America also argue that this represents an effort by the Court to usurp power that rightly belongs to Congress and the electorate. Indeed, Justices Roberts, Scalia, Thomas, and Alito, argued that the majority’s decision lacked a basis in law but represented its invention of what really was unjust.
While I do not pretend to understand even what the law says, or should say, I will take on these two arguments. Firstly, as Stephen McDowell and Mark Beliles write in their brilliant book, In Search of Democracy, the idea that inspired the principle of separation of powers is that government functions no united in the same individual, but tin separate and equally balanced arms of the same government. While the legislature and the executive are elected directly by the people, and therefore represent the will of the majority, the judiciary seeks to protect the minority from the majority’s tyranny. It takes the courts to save the minority, from the failure of the majority to recognize their rights. While there would come a time, centuries from now, when the world would agree that LGBTs have equal rights-or not, I suggest that as we prepare for this, this time, just this once, let us err on the side of caution. I believe the Court did well, even if this has no basis in law. With regard to the fear that the ruling will be used against conservatives, I say, this is better than conservatives using marriage laws against liberals-and so be it.
In closing, let me echo Justice Kennedy’s sentiments that the nature of some injustices is that “we may not always see it in our own times”. However, as was, and still is the case with racial discrimination, in the course of working towards, what is right, it is important that in the meantime, we do not step on other’s rights. The Court may have overstepped its mandate, but this must not be an issue. It should serve to help America come to terms with itself, and face its own ghosts without legal or religious scapegoats.
Process Memo: Rhetorical Analysis
This is a newspaper article, and, therefore, the audience is the public. As such, the article needs to get their attention and keep it. To this end, the article’s tone is light, informal and chatty. When referring to sources, for instance, the article uses an informal approach, e.g., “Stephen McDowell , and Mark Beliles write in their brilliant book” as against to using formal academic references. It uses the author’s voice, just so that readers know that it is the author’s own opinion, with which they may agree or disapprove. Knowing that the audience may be in support or against ideas espoused in the article, the approach adopted need to ensure that they still read and understood the other position. In order to ensure persuasiveness, the article employs a number of strategies. Firstly, it draws on authoritative sources, including the Supreme Court ruling, official reports, and published texts. In addition, the article draws on historical facts to make the point.
Since LGBT issues are live issues about which people feel strongly, the historical hindsight allow the audience to step out of themselves, and look at the issues objectively. This is especially effective because the LGBT is a live issue that excites extreme emotions, and thus using history to helps avoid the attendant emotions. The inclusion of sarcastic phrases such as “that is social progress folks”. The article also draws on statistics, which serves to lend it credibility. Even most importantly, I did not want my audience to think I was bigoted, but that I was aware of and understood both sides of the argument. I neither wanted to ignore not belittle opposing arguments, but to address them in a balanced way.
Works Cited
Obergefell v. Hodges, 576 U.S. ___ (Supreme Court July 2015).
Apuzo, M. (2015, March 3). Ferguson Police Routinely Violate Rights of Blacks, Justice Dept. Finds. Retrieved July 19, 2015, from http://www.nytimes.com/2015/03/04/us/justice-department-finds-pattern-of-police-bias-and-excessive-force-in-ferguson.html?_r=0
Carroll, L. B. (2010). Backpacks vs. Briefcases: Steps toward Rhetorical Analysis. In C. Lowe, & P. Zemliansky, Writing Spaces: Readings on Writing, Volume 1. Parlor Press.
Deangelo, D. (2015, May 17). The message in these bottles: Don’t buy them. Retrieved July 19, 2015, from www.davisenterprise.com/forum/opinion-columns/bottled-water-is-bad-enough-but-bottled-california-water-is-even-worse/
McDowell, S. K., & Beliles, M. (2000). In Search of Democracy. New York: Providence Foundation.
