It has been a mighty bad week for justice in America. The SCOTUS rulings in the affirmative action case (Students for Fair Admissions v. Black People) and the website design case (Religious Bigot v. Gay Folks) managed to unravel a generation worth of social progress in just two days.
I hesitated to opine about these cases, as there is no dearth of cogent commentary, but several perspectives propelled me to add to the pile.
As to the affirmative action case:
Being retired and somewhat obsessive about these matters, I read the Court’s opinion, Clarence Thomas’s concurring opinion, and the searing dissent by Justice Jackson, in their entirety. (Available at the link provided above)
Particularly noteworthy is that the words “colorblind” or “colorblindness” appear 48 times, primarily in Thomas’s blathering concurrence. It seems that he believes so deeply in colorblindness that he is now blind to his own color. Of course his astounding ethical lapses indicate that he is also tone-deaf. His concurrence traveled through much of the 18th and 19th century, unearthing mounds of historic rationale for what is really an emotional basis for his opinion: Thomas hates the stigma attached to affirmative action, feeling it taints the accomplishments of its beneficiaries. He was, of course, such a beneficiary, which he has acknowledged and deeply appreciated in years gone by.
As to the rest of the majority, their position can be summarized as, “That was then, this is now,” claiming that such programs are no longer justified, since ex-Justice Sandra Day O’Conner mused, in the 2003 “Grutter” case, that 25 more years should fix everything. They’re a few years early, but still . . .
Since the time has come to end racial consideration in college admissions, perhaps we can disallow affirmative preference given to Black folks in prison “admission,” drug sentencing, no-knock warrants, death sentences, and other ways they are disproportionately “advantaged.” But conservatives seem to believe that these things are just fine, while a tiny advantage in college admission is a no-no.
As to websites:
The conservative majority ruled that wedding website designer Lori Smith damn well didn’t have to design a website for gay couples, believing that their unions are a biblical abomination and therefore her artistry would be conscripted in service of “speech” she abhors. The majority even offered that she could post a sign, digital or otherwise, saying essentially, “No Gay Couples Served.” This decision was just one of a lengthening string of cases where so-called religious freedom Trumps any other Constitutional right in its way.
It is quite easy to imagine ongoing ramifications of this decision. What would prevent a restaurant from refusing to serve an interracial couple because they believe mixed marriage to be a abomination and their delicious grits are an artistic expression, not a public accommodation? Or if the owners of a tailor shop were adherents of the Holy Church of David Duke and refused to design one of their signature white suits for a Black man?
The conservative justices and their political patrons would pooh-pooh those hypotheticals, of course. That’s because “religious freedom” is only fully applicable to their peculiar iteration of Christianity, where – in the modern version – only homosexuals are a true abomination. They will, of course, love the sinners while hating the sin, being utterly blind to the reality that hating the acts of people suggests that you might actually hate the people.
In the eyes of the law, as determined by the Court’s decisions, only LGBTQ+ Americans are second-class citizens, to be denied rights because the de-facto national religion of the United States insists on it.
Of course, we also have a de facto national race in America too, as evidenced by the many successful efforts to re-establish white male hegemony over – well – everything.
I’ve bleated consistently for years that the conservative movement is a retribution coalition, reacting to the social advances in gender equality, civil rights and gay rights that were the building blocks of a social justice generation. The Supreme Court is working hand-in-glove with conservative activists, like the reprehensible Federalist Society, to tear it down, brick by brick.
Make no mistake. These cases and many others are not the adjudication of genuine disputes that come to the highest court for resolution. They are explicitly political, where devious organizations, like Students for Fair Admissions, cast about for a plaintiff or plaintiffs who they use to advance their cause. In the affirmative action case, Ed Blum has been doing this for many years and crafted a group of Asian-Americans because they would make a more sympathetic “harmed” class. (He found less success with the very white Amy Fisher in two cases.) In the website case, religious freedom crusaders found a plaintiff – Ms. Smith – who hadn’t even started her business; and no gay couple had sought her services. But screw ‘em anyway!
Stand back a few paces and it is striking to see these cases as manifestation of the erosion of kindness and generosity. Certainly the architects of these legal assaults have suffered no harm. They are, whether the SCOTUS justices, the Federalist Society, or Republicans in Congress, almost all privileged white people. Even Clarence Thomas, in spirit, belief, action and the oligarch company he keeps, is essentially a privileged white person.
Affirmative action and the various manifestations of gay rights were intended as modest extensions of generosity and understanding to our fellow citizens who suffered centuries of discrimination. It costs so little to the rest of us, except perhaps a web designer without a business and some Asian-American students who have to go to Yale instead of Harvard.
That the kindness is withdrawn in the name of fairness and Christianity is beyond ironic.