Tuesday Vigil in SF at CA Supreme Court marriage hearing

Date: 22 May 2004 14:16:44 -0000

Dear Everyone;

Below is an OP/ED from the NY Times about the Hernandez vs. Texas. A US Supreme Court ruling which preceded Brown vs. Bd. Education and was also decided by the Warren Court. The basis of the suit was jury discrimination against Mexican-Americans in Texas. In Texas, Mexicans were as severely discriminated against as African-Americans and in numerous incidents more severely than African-Americans.

In light of the gay marriage issue which will be argued next Tuesday the highlighted portions are germane to the gay marriage issue.

Paraphrasing the article: When is it discrimination to bar and/or ban gay marriages? When groups suffer subordination.

When gays as a group are selectively discriminated against in having the ability to become married this is a violation of a US Supreme Court ruling. Because it constitutes group subordination. While Proposition 22 ( man and woman get married ) garnered some 4 million votes there are 25 million adult Californians. Talk about a tail wagging the dog propostion.

Presumably in the arguments presented group subordination will be brought forward as an argument to stop banning or barring gay marriages using the Hernandez vs. Texas ruling as a cornerstone.

Ron Getty SF Libertarian

May 22, 2004

Hernandez v. BrownBy IAN HANEY L�PEZ

ERKELEY, Calif. � With commemorations from coast to coast to remind them, most Americans already know that this week was the 50th anniversary of Brown v. Board of Education. Unfortunately, what they don't realize is that the country missed an equally important anniversary two weeks ago, that of Hernandez v. Texas � the perennially overshadowed antecedent to Brown that was decided on May 3, 1954.

That case merits commemoration not just because the Supreme Court used it to finally extend constitutional protection to Mexican-Americans, important though that is, especially now that Latinos are the largest minority group. It's worth celebrating because Hernandez got right something that Brown did not: the standard for when the Constitution should bar group-based discrimination.

Hernandez involved jury discrimination, which the court had long prohibited. The question in Hernandez, unlike in Brown, was not whether the state's conduct was unconstitutional; it was whether the Constitution protected Mexican-Americans. But the dynamics of the case prevented the court from answering that question by reasoning that Mexican-Americans, like blacks, constituted a racial minority.

That's because the political and social leaders of the Mexican-American community at that time argued for equality not on the ground that discrimination was wrong per se, but because they were white. Texas, in turn, harnessed this argument to its defense, pointing out that if Mexican-Americans were white, so too were the persons seated on Texas juries.

Because both sides insisted that Mexican-Americans were white, Hernandez v. Texas forced the court to confront directly a question it would sidestep in Brown: under precisely what circumstances did some groups deserve constitutional protection? Hernandez offered a concise answer: when groups suffer subordination.

"Differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws," the court wrote. But, it said, "other differences from the community norm may define other groups which need the same protection." Succor from state discrimination, the court reasoned, should apply to every group socially defined as different and, implicitly, as inferior. "Whether such a group exists within a community is a question of fact," the court said, one that may be demonstrated "by showing the attitude of the community."

How, then, did the Texas community where Hernandez arose regard Mexican-Americans? Here the court catalogued Jim Crow practices: business and community groups largely excluded Mexican-Americans; a local restaurant displayed a sign announcing "No Mexicans Served"; children of Mexican descent were shunted into a segregated school and then forced out altogether after the fourth grade; on the county courthouse grounds there were two men's toilets, one unmarked and the other marked "Colored Men" and "Hombres Aqu�" ("Men Here").

The same sort of caste system that oppressed blacks in Texas also harmed Mexican-Americans. But it was Jim Crow as group subordination, rather than as a set of "racial" distinctions, that called forth the Constitution's concern in Hernandez v. Texas.

Of course, Brown v. Board of Education also responded to group mistreatment. But the court did not state in sufficiently explicit terms that school segregation violated the Constitution because it constituted systematic oppression, rather than because it turned on race. This small lapse left open just enough space for the misreading of Brown that now dominates conservative thinking on antidiscrimination law � including on the Supreme Court. Brown, the majority now contends, stands for the proposition that the Constitution opposes not noxious practices of oppression but instead only the state use of formal racial distinctions.

The anti-caste commitment of Brown lies today distorted, and its efficacy as constitutional law largely eroded. Treating every official use of race as akin to racism, the Supreme Court erects virtually insurmountable constitutional hurdles against all race-conscious government action. No statement better captures this misguided equation of Jim Crow and affirmative action than Justice Clarence Thomas's assertion that there is "a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race."

Meanwhile, the court protects from constitutional challenge situations in which racism operates powerfully but not explicitly. For example, even after conceding that Georgia sentenced to death blacks who killed whites 22 times more often than blacks who killed blacks, the court upheld Georgia's death penalty machinery. Under 14th Amendment law, any use of race encounters the same constitutional hostility; but systematic discrimination, if not expressly based on race, receives the Constitution's blessing.

The current court reasons as if Brown held that it is race per se, rather than racism and maltreatment, that offends the Constitution. In this, Brown itself is partly to blame. Confident that the 14th Amendment protected blacks, Chief Justice Earl Warren in Brown did not expressly explain why this was so: not because they were a race, but because they were oppressed.

Under the title "What Brown v. Board of Education Should Have Said," Jack Balkin, a Yale law school professor, recently enlisted legal scholars to rewrite that decision in a manner that might have prevented the distortions that now mar constitutional antidiscrimination law. But the exercise is largely unnecessary. Chief Justice Warren already said what Brown should have. He did so two weeks earlier, in Hernandez v. Texas. After 50 years, the time has come for courts and scholars to install Hernandez where it belongs: at the center, with Brown, of a robust 14th Amendment law committed to ending racial subordination.

Ian Haney L�pez, a law professor at the University of California at Berkeley, is the author of "Racism on Trial: The Chicano Fight for Justice."

"Christopher R. Maden" <crism@...> wrote:

Date: 22 May 2004 14:16:44 -0000
To: Christopher Maden <chair@...>
Subject: Tuesday Vigil in SF at CA Supreme Court marriage hearing
From: "Marriage Equality California" <molly@...>

MECAMail!� Marriage Equality California

"Marriage, Anything Less Is Less Than Equal"

Join us on Tuesday, May 25th from 9:00a.m. to 11:00a.m. as the California
Supreme Court hears oral argument on the lawsuit filed by Atty General
Bill Lockyer against Mayor Newsom and the City of SF for issuing marriage
licenses to same-sex couples. The validity of our 4,068 civil marriage
licenses hang in the balance. Please join us at 300 McAllister St (right
next door to SF City Hall in Civic Center) on the steps. We will have
signs, feel free to come in wedding garb, bring a copy of your marriage
license, bring your family and friends and we will listen together to the
attys arguing the case. Hope to see you there.

Watch ABC Channel 7 tonight (Saturday) at 7pm as MECA Director Molly McKay
joins SF City Atty Dennis Herrera and Rev. Amos Brown in debating Raymond
Quong of the Chinese American Bay Area Families for Traditional Marriage
and Jefrrey Ventrella of the Alliance Defense Fund in a roundtable
discussion moderated by Pete Wilson.

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