Who Needs the Courts for Justice When We Have the People
It wasn’t even close and represented one of the more profound examples of judicial bi-partisanship that we’ve seen in some time. That was my initial thought after learning that the U.S. Supreme Court voted 7–2 to allow for a Colorado-based baker to refuse to make a customized wedding cake for a gay couple, based on religious grounds
The realization of marriage equality was sudden in social movement terms: in less than 20 years, the United States flipped from a majority of citizens opposing marriage equality to a vast majority supporting it today. Yet, today, the highest court in the country ruled that your religious views give you the right discriminate against same-gender couples. That’s enough to drive many into a state of warranted depression, if not warranted rage — and that is certainly how I felt when I first heard the decision and read a portion of Justice Kennedy’s majority opinion.
But then I remembered another shameful SCOTUS decision that justified discrimination. In 1857 the Supreme Court, led by Chief Justice Roger B. Taney, ruled that Blacks in the United States, slaves and free people, were not and could never become full citizens of this country. The ruling declared that the humanity of Dred Scott and others who looked like him or contained African/Latin blood should be valued at 60% that of white human beings.
I think about that case all the time and how I would have reacted if a group of white men, clothed with immense power, had told me that I did not qualify for full personhood and dehumanized me with such profanity. The good news is there were a slew of abolitionists alive to answer the question for me and for themselves. From Harriet Tubman, to Frederick Douglas, to Ralph Waldo Emerson, to Harriet Beecher Stowe, and many whose names we will never know, people looked to each other and (in word and deed) said, “fuck that” and “fuck you” to the most powerful court in the land. They kept mobilizing, kept agitating, and in some cases, decided to flat out defy the law. Their actions sparked some painful and wholly necessary reckoning, including one of the most influential books in history and an intracontinental war that led to three of the most important amendments in this nation’s constitution, the 13th, 14th and 15th.
Fast forward roughly 100 years to a young Southern preacher, who had made quite a name for himself and his followers. They were gathered in Alabama to lick their wounds after a crushing defeat in Albany, AL. It was at this regrouping and re-organizing strategy session that Martin Luther King and his accomplices, including Ralph Abernathy, developed one of the more gangster models for “non-violent” direct action ever devised: Plan-C, as in “Confrontation.” At the end of the campaign (which all should really read up more on in the epic work by the Engler Brothers: This is An Uprising), the white owned businesses in Birmingham voluntarily ended their platform of segregation. Moreover, Plan-C was one of the more galvanizing campaigns of that era in that it touched the hearts of numerous white people to begin publicly demonstrating their support for Black Liberation through indirect and direct participation.
The point of discussing Plan C is to remind ourselves that we don’t need the courts to make the societal changes we want and know are possible. Of course, it would be helpful if the courts had our backs, but recent evidence suggests that we would be foolish to rely on them to do what’s right for the people. From gutting the Civil Rights Act in 2011 and the Voting Rights Act in 2013 to the recent assault on workers’ ability to organize, we can trace a silver lining through all of these derelictions of jurisprudence: when courts make disappointing decisions that undermine social justice, they are actually giving we the people more power than we realize. There are many examples of the Supreme Court kicking a case back down to the lower courts to decide the outcome, this time they kicked it down to the people.
It’s time to look to each other and push ourselves to unleash the power we could build together in order to arrive at that destination we call mutually beneficial justice for interdependent people.
Let me break it down a bit more.
In 1986 the Republican Lord of Conservatism, Ronald Regan, vetoed the bi-partisan Comprehensive Anti-Apartheid Act, and that veto was overridden by Congress. This was largely due to a national and global effort that included boycotts of South African companies and international companies doing business with them. While the extent of the impact of the massive divestment campaign on South African businesses is still debated, it cannot be denied that it had a significant, if mostly visceral, impact. And, we have to also mention the more recent Boycott-Divest and Sanction (BDS) campaigns launched against Israel due to continued suppression of Palestinian liberation and dignity. I firmly believe that individuals, organizations and lawmakers who are anti-BDS are at least as worried about the financial bottom line as they are about the alleged issue of “anti-Semitism.” And what happened to Apartheid South Africa is a big reason for that.
This is all to say that SCOTUS has indeed communicated this: you have every right in the United States of America to be a homophobic bigot, and the proper justification for such bigotry is the evocation of your religion. To that I say, it’s time to get our Issac Newton on and apply a social variety of Newton’s third law of motion. That is, we the people have every right to react to legally sanctioned bigotry for businesses by taking OUR business away from them. And while we’re at it, if the teachings of our faith traditions call us into such actions, let’s make sure we publicly declare that our actions to be expressions of our religious freedom.
At the end of the day, business owners who refuse to serve same-gender-loving couples (whether their religious convictions are genuine or not) have bills to pay and mouths to feed. Therefore, it’s up to us to comprehend that we vote more frequently with our wallets and purchasing choices than we do for candidates and lawmakers.
There are already examples of people-led sanctions against bigotry having an impact. In Portland, Oregon, in response to white owned restaurants whose businesses were built on cultural appropriation, the people rose up, created a list of these restaurants and food trucks and even included a list of Black/Brown owned-operated establishments in the process.
There’s absolutely no reason we can’t replicate this model for establishments who exercise homophobia — and I believe two things will happen immediately in the process. First, bakers, for instance, who want to get more business will become partners in assisting us with taking a stand against homophobia; and second, establishments that are considering using their faith as a justification for bigotry will probably dust off their old REM records and memorize the lyrics to “Losing My Religion” when they realize that bigotry no longer pays.
The moral to all of this is simple, we have much more power than a nine-person court. There are millions more of us than there are of them, and we do have the ability to rise up, even when it appears on the surface that our attempts for mutually beneficial justice have been struck down.
As my homie Marc Brownstein and his band the Disco Biscuits say:
The confrontation was a necessary act.
We traded in our lives but took a million back.
And in the end, it seems I get what I deserve.
But for one moment’s time, I wish I had the nerve.
Do we have the nerve to launch a people-powered sanction campaign against bigotry?
