Saturday, October 25, 2014

An Irrelevant Legislature

What is it about state governments generally and state legislators specifically that make it such a challenge for them to protect civil rights? We’ve just witnessed one more example of their failure being remedied by the federal courts.

What seems to some as a sudden headlong rush into legalizing same-sex marriage nothing more than advocates tiring of the slog through the halls of the legislature and moving instead to the halls of justice.

It was no different for those seeking civil rights for blacks in the mid-20th century. When recalcitrant state governments thwarted President Truman’s civil rights reforms, he appointed a Commission. In October of 1947, the President’s Committee on Civil Rights issued its report entitled “”To Secure These Rights.”

The Committee reviewed the ugly history of lynchings, police brutality, and the dedicated campaign of local and state governments to deny the right to vote. They documented a broad range of discrimination in employment, education, transportation, use of public facilities, and access to government.

The main culprits were local and state officials who refused to enforce the law and were among the most egregious offenders. The report concluded bluntly that the country “cannot afford to delay action until the most backward community has learned to prize civil rights and has taken adequate steps to safeguard the rights of every one of its citizens.”

The old adage attributed to Thomas Jefferson that, “government is best which governs least” is not applicable to governments failing to protect the civil rights of its people. Governments that govern least when some citizens are denied basic rights enjoyed by the majority are simply failing to do their job.

The long, slow slog toward marriage equality and other civil rights for gays, lesbians, bisexual, and transgender persons gathered momentum only when its advocates recognized that state governors and legislators had rendered themselves irrelevant. Legislators refused to recognize both the historic changes in the views of the people and the mandate of their oaths to “obey and defend the Constitution of the United States and of the state of Wyoming.”

While the Wyoming legislature restrained itself from passing some of the most virulent anti-gay proposals, the debates, nonetheless, were demeaning to many. Our legislature and many others refused to enact criminal statutes enhancing penalties for hate-based crimes despite evidence of the severity of the problem. Congress and federal courts were the only resort.

The difference between the legislature and the courts is that judges have to actually read and interpret laws and the constitution. Legislators can blithely ignore all of that in favor of silly statements and pandering votes.

The silliness did not end with the federal court’s decision in this case. State Rep. Gerald Gay, who once admonished his colleagues not to call him “gay” said the courts have no right to tell the legislature what to do. Gay would have made a great Mississippi legislator in the 60s when that discredited argument was being made to pander to the bigots and avoid integration.
Gay is the perfect example of how the legislature makes itself irrelevant on these matters of justice and fairness. Anyone who could read knew religious-based bans on the right of gays and lesbians to marry violated the equal protection clause of the US Constitution. But it would have taken far more courage than can be mustered in a legislative majority to speak the truth and do what was right.
Now there is the issue of job discrimination. Gays and lesbians in Wyoming may be fired because of their sexual orientation. You can predict that some Wyoming legislators will use the issue to punish the LGBT community for their victory on marriage equality.

But once again, to paraphrase the Truman commission, citizens denied justice “cannot afford to delay action until the most backward legislator has learned to prize civil rights and has taken adequate steps to safeguard the rights of every one of its citizens.” The federal courts and Congress will eventually do what the legislature refuses to do.

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