The recent Supreme Court decisions striking down the federal Defense of Marriage Act (in United States v. Windsor) and reaffirming the California Supreme Court’s rejection of the challenge to Proposition 8—the state ban on gay marriage (in Hollingsworth v. Perry)—mark a major moment in United States civil rights history. No longer can the federal government discriminate against legally married gays and lesbians, and same sex couples may now legally marry in California. Though in neither case did the Court go so far as to prohibit states from denying gay and lesbian couples the right to marry, the cases nonetheless constitute a significant milestone. These outcomes were far from certain in the hands of an institution that only recently had legitimized the prerogative of states to criminally prosecute gays and lesbians, and to deny them basic rights as a legitimate expression of moral opprobrium. But things have changed. Windsor and Perry are now not only part of our constitutional infrastructure; they are part of the American story of civil rights reform. In this respect, we have come a long way. That we have travelled this distance should be cause for celebration. And, yet, we cannot.
We can’t celebrate because despite the affirmation of one set of rights, another—the civil rights of African Americans—is being relentlessly undermined. Continuing a decade-long trend of attacking and eroding legal remedies for racial inequality, the Supreme Court effectively gutted the Voting Rights Act –the most powerful and productive civil rights provision secured through the Civil Rights Movement’s bloodiest struggles against racial domination. In Shelby v. Holder, for the first time in over a century, the Supreme Court ruled that despite the fourteenth amendment’s express grant of authority to Congress to remedy racial discrimination, Congress’ actions were unconstitutional. This was not merely a narrow ruling regarding congressional intentions that might have invited Congressional clarification. Instead the Court overturned Congress’ bi-partisan conclusions, supported by voluminous evidence, that the promise of racial equality in the democratic arena required ongoing protective measures, and substituted its own groundless judgment that voting rights protections imposed unjust burdens on unfairly stigmatized states. In so doing, the Court afforded states’ rights greater constitutional concern than individuals’ rights, trading on an old and sadly familiar constitutional technique to suppress racial equality. Given the current fractured political landscape, the power that the Court so brazenly grabbed from Congress’ grasp may never be restored. This will further erase the very limited collective memory we have of the sacrifice of the thousands of lives irreparably damaged or lost to achieve these and other civil rights protections.
Yet notwithstanding this aggressive assault on civil rights, and the fact that these rights formed the very terrain out of which more recent demands for equality grew, there was very little public outcry. This muted response cannot be attributed to any confusion about the inevitable consequences of this devastating loss. Indeed, in the immediate wake of the decision, various Republican politicians have quickly and unapologetically moved forward to install highly restrictive and unnecessary voter identification laws previously blocked by the VRA, knowing full well, and intending the negative impact those laws will have on people of color and poor people.
We cannot celebrate because even though the Court did not declare affirmative action per se unconstitutional, its ruling in Fisher v. University of Texas will make such policies far more difficult to sustain. In sending the case back to the lower court, the Supreme Court made a formal nod to precedent in affirming that diversity constituted a crucial interest for an academic institution, but stealthily departed from prior case law in ratcheting up the evidentiary standard that the university is required to meet in order to justify its most limited use of race. Rather than strike down affirmative action outright, the Court has subjected it to the risk of death by a thousand cuts. The Court’s ideological hostility to policies that seek to dismantle racial inequality is masked behind technical evidentiary rulings that lighten the load for those opposed to diversity and place potentially insurmountable burdens on those who carry the imperatives of racial justice forward. Indeed, while the Court’s majority lowered the bar to embrace Abigail Fisher’s claim that her equal protection rights were violated in the absence of any evidence that she had qualifications superior to those students who were admitted, it ruled that the lower court’s evaluation of the University’s extensive evidence justifying its use of race was not stringent enough, essentially requiring the school to jump over an even higher hurdle to support the policy. Although asserting that these results flow from neutral principles, the Court’s decisions reveal that in effect there are different standards for different claimants—a difference that decidedly is not colorblind but is marked by race. While the case is not over, and the university will have another chance at bat, we should not lose sight of the fact that the game is now rigged. White claimants along with aggrieved Southern States are the new recipients of the Court’s interventionist sympathies. Together with Shelby, these decisions reflect conservative racial politics dressed up as race-neutral, colorblind constitutional jurisprudence, a repackaging of resistance to racial equality that we cannot celebrate.
We can’t celebrate because the Roberts’ Court continues to impose heavier burdens on those who seek to prove employment discrimination in the workplace—an ongoing problem verified by repeated studies and investigations. In two decisions that remained largely under the radar, the Court required plaintiffs alleging employment discrimination to essentially submit proof beyond a reasonable doubt in the context of civil cases where the standard is less. Researchers over the past decade have demonstrated that cases asserting race-based discrimination are the most difficult to win, in part because of the kinds of aggressive interpretations of the statutes that the Court has imposed and that lower courts have adopted. The most recent decisions reflect the Court’s zero-sum approach to equality, previewed in a prior ruling that effectively framed efforts to minimize disparate impact discrimination against minorities as intentional discrimination against whites. In Ricci v. Destefano, the New Haven firefighters case, the Court held that the City’s efforts to avoid the racially exclusionary effects of its promotional test by cancelling the test results for everyone and looking for a less discriminatory metric was itself a form of intentional race based discrimination against whites. This move effectively placed such disparate impact claims on the critical conditions list, with Justice Scalia seemingly anxiously and peevishly awaiting the opportunity to declare this bedrock provision of the employment discrimination act to be unconstitutional.
We can’t celebrate because the Court continues to frame racial remediation efforts no matter what the context—in education, in employment, in voting—as racial preferences or reverse discrimination. What is even more distressing is that many liberals and progressives frame racial remediation in this way as well. For example, the standard liberal defense of affirmative action is that the policies are racial preferences that are necessary to ensure diversity. This framing of affirmative action is precisely what Justice Scalia traded on when he cast the stigma of preferential treatment around the fundamental right of non-discrimination in voting, referring to the Voting Rights Act as a “racial entitlement.”
We can’t celebrate because the Supreme Court cases this term reflect a more general phenomenon whereby African Americans are becoming increasingly irrelevant in social justice advocacy. Whether via calls to “get beyond the black/white paradigm” or the slogan that “gays are the new blacks,” efforts to discuss African Americans as the appropriate subjects of civil rights interventions are regarded as out of step with current realities. We are to seek remedies for racial inequality without using the “r” word and particularly admonished to avoid any reference to specific forms of anti-black racism. Apparently, we are to acquiesce to the view that the country—and certainly the Supreme Court—is sick and tired of African American civil rights claims (read: racial grievances), but not sick and tired of African American inequality. The yawning and sometimes widening inequalities that still exist are, if ever acknowledged, typically framed as a product of our alleged cultural dysfunction.
We can’t celebrate because our President, our leaders and our advisors tell us that we cannot hope to achieve effective coalition by drawing attention to racial inequality. They insist that we have to find another register in which to make our concerns speak to those who are not concerned about us. We cannot celebrate because we know what gay rights advocates know: that an inequality that can’t be named cannot be addressed.
We cannot celebrate because African Americans cannot benefit from the kind of empathy that played at least a partial role in mobilizing the public to support marriage equality. We know that when appeals to be treated as an equal are pitched so that “persuadables” can understand this imperative through the lives of a loved relative, trusted colleague or dear friend, we who have been America’s Others will not gain traction or empathy through such ties. We cannot celebrate because we know that we are not able to have our difference minimized, because our difference defines not only who we are in the eyes of fellow Americans, but also defines who other Americans imagine themselves to be.
While we join in acknowledging with respect the work and sacrifice that went into achieving the gain of the marriage equality decisions, we do so with the sobriety that comes from recognizing the Court’s decisions for what they are—a vision of equality that appears to create winners and losers but in the end shortchanges everyone. Formal equality—the idea that we all just want to be treated the same—was never the only objective of the civil rights movement, the women’s movement, nor any social movement. The African American freedom struggle was not over when the Supreme Court decided Brown, or the Civil Rights Act was passed. Nor was the women’s movement over when women got the right to vote or were no longer excluded from military combat. Immigration rights will not be won if the bill before Congress is passed, nor will the right to marry resolve the ongoing patterns of discrimination against LGBT people. We cannot celebrate because we recognize that despite the myriad constraints imposed by those who stand against human rights in all its various dimensions, we should not accept the current terrain as the map of our possibilities. What we can do is celebrate the clarity that comes from speaking the truth about where things are—a truth that must be reckoned with as a necessary if insufficient precondition towards realizing our freedom dreams.
All of us or none.
Devon Carbado teaches Constitutional Criminal Procedure, Constitutional Law, Critical Race Theory, and Criminal Adjudication. He is an outstanding teacher who was elected Professor of the Year by the UCLA School of Law classes of 2000 and 2006. In 2003 he received the Law School’s Rutter Award for Excellence in Teaching, and he has also received the University’s Distinguished Teaching Award, the Eby Award for the Art of Teaching. He writes in the areas of critical race theory, employment discrimination, criminal procedure, constitutional law, and identity. He is editor of Race Law Stories (Foundation Press) (with Rachel Moran), and is working on a book on employment discrimination tentatively titled “Acting White” (Oxford University Press) (with Mitu Gulati). In 2005 Professor Carbado was named an inaugural recipient of the Fletcher Foundation Fellowship. Modeled on the Guggenheim fellowships, it is awarded to scholars whose work furthers the goals of Brown v. Board of Education.
Kimberlé Crenshaw is a Professor of Law at UCLA and Columbia Law School. She is a leading authority in the area of Civil Rights, Black feminist legal theory, and race, racism and the law. Her articles have appeared in the Harvard Law Review, National Black Law Journal, Stanford Law Review and Southern California Law Review. She is the founding coordinator of the Critical Race Theory Workshop, and the co-editor of the volume, Critical Race Theory: Key Documents That Shaped the Movement. Crenshaw has been executive director of the African American Policy Forum, a legal think tank since she co-founded it in 1996.