Race And Sex: A Judicial Chronology Of The Battle With Discrimination

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The issue of minority discrimination in America whether it is a matter of race, gender, sexual orientation, or any other category that has can be determined to have a demographic majority and minority has been present since the foundation of the country. There have been riots, supreme court cases, constitutional amendments, and changes in the dynamics of American society due to the addressing of these issues. The voices of all of possible minority groups who might face discrimination are loud and clear.

However, there are two groups are just as prominent today as they were when they first began their fight for equality decades and millenniums ago: African Americans and Homosexuals. The African American fight for freedom and equality can be traced back millennia with the Supreme Court case of Dred Scott v Sanford in 1857, to Plessy v Ferguson in 1896, and nearly one hundred years forward from the first case to the case of Brown v. Board of Education in 1954.

While there have been more recent cases surrounding African Americans and their fight for racial equality, the said three are some of the most relevant for them. A homosexual struggle let alone fight for equality cannot be traced as far because African Americans were considered biologically inferior to Whites, but homosexuality was considered biologically unnatural altogether. Therefore, it took gays longer to stand up for themselves as they had more to prove. Blacks had to prove they were equally capable of things, homosexuals had to prove the same on top of the fact that they were not mentally unstable nor being manipulated to be attracted to the same sex by a sinister force. Gays have also had famous supreme court cases surrounding them. The case of Bowers v Hardwick in 1986 is where one can see the start of homosexuals fighting for equality. Gay issues ressurect in the case of Lawrence v Texas in 2003, and most recently in the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Dred Scott V Sandford is a historical mark in the American criminal justice system when it comes to African Americans. According to Lea VanderVelde, Professor of Law at the University of Iowa, the case is famously ridiculed for justifying slavery, and for the racism involved in the reach of its decision. The case is famous because it essentially made slavery legal everywhere in the United States on the grounds that black people were not citizens of any state, only property, and therefore were not entitled to the rights that White Americans had, so much so that even the slightest attempt at emancipation was considered unconstitutional. VanderVelde explains that Dred Scott was a slave who moved to a state that did not permit slavery, and because of this, Scott claimed that he was permanently free. However, the court ruled that the federal government could not control whether a state government allowed slavery or not, and that Dred Scott was not a citizen to even be striving for any kind of civil rights.

This case was a catalyst for slavery and racism against African Americans becoming a prominent national issue. The case eventually caused the reconstruction amendments to be written because the United States needed to be sure that the claims and decisions in that case were constitutionally rebutted. The case marks an easy to understand starting point for the African American journey to attaining civil rights in modern history. While the constitutional amendments did address the claims made in the ruling, African Americans were still facing discrimination in other departments of American society. Namely, over three decades after the ratification of the 13th amendment, which banned slavery in the United States, the supreme court came out with the decision of Plessy V Ferguson.

According to Louis Menand, professor of English and American literature at Harvard University, Plessy v Ferguson was probably was probably the most famously negative supreme court decision surrounding race following Dred Scott. It is famous for legalizing the concept of “separate but equal”, where the separation of the races is not necessarily considered discrimination. William James Hoffer, professor of legal, economic, and literary history at Seton Hall University explains that the decision allowed the states to continue segregating public facilities on the basis of race and at their discretion. At the time of the decision, this particular freedom was overlooked, but it became the justification for a lot of racial decisions following it. In theory, this would be acceptable because it is following the orders of the highest court in the United States. The issue lies in the fact that schools and restaurants, among other colored facilities, were vastly inferior compared to the White ones.

The decision of this case indicates progress since the decision of Dred Scott, but simultaneously demonstrates that there was still discrimination and that the justice system was ignorant at the time to not realize that separation of any kind on the basis of race was inherently not equal. Corrina Barret Lain, professor of Criminal Procedure and Evidence at the University of Richmond School of Law, gives a larger context for the case in order to help her readers understand how the justices at the time could have come to such a decision.

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She explains that at the time of the decisions, racial tensions were increasing due to several factors. Lynching was at an all-time high, states were passing laws that permitted voting discrimination, and more African Americans were migrating North. Due to these factors, it should be no surprise that the court reached such a decision. Frankly, the decision was surprisingly positive for African Americans at the time and could have been a lot worse.

Things began turning around in the justice system for African Americans with the case of Brown v Board of Education. Marcia Fudge, US representative for Ohio’s 11th congressional district, explains that the Equal Protection Clause of the Fourteenth Amendment was the basis of the court’s decision. The reasoning the court used in its decision was that American schools were unequal by virtue of being separate.

This violated African children’s rights to equal protection of the laws, promoted the idea that black children were inferior to children of Caucasian descent. Fudge notes that this case marked the beginning of the end of de jure segregation, or segregation that was a result of law. Patrick Keane, justice of the high court of Australia notes that the court could have arrived at the same decision if the court did not look at neither the 14th amendment - which was made specifically with African Americans in mind – nor with the judges’ impressions of how separate facilities were inherently unequal. He explains that any form of separation on the basis of race was a direct violation of the first premise of the constitution.

Acknowledging this would have made the decision much easier to arrive to. The Brown decision is a historically relevant one because it was the first time that a supreme court decision aligned with positive views on racial equality and negative views on discrimination. Like African Americans, homosexuals too have supreme court cases that serve as historical points for them. The decision of Bowers v Hardwick is arguably the gay equivalent to the decision of Dred Scott v Sandford, and Lawrence v Texas can be compared to Brown v Boars of Education. Finally, the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission was a very recent case that indicates where gays stand in the United States in terms of progress. These cases, like the ones already discussed about African Americans, represent an easy to understand chronology of the homosexual fight for equality.

The case of Bowers v Hardwick can be compared to the Dred Scott decision because it declared discrimination against homosexuals and homosexual activity constitutional and therefore legal everywhere. This is what Dred Scott did for African Americans: on a constitutional reasoning slavery was made legal everywhere along with the discrimination of citizens for no reason other than race. Kimberly West Faulcon, Professor of Law at Loyola Law School, tells the story how after the decision was made, Bowers was infuriated and refused to accept that he could not have sex with another consenting adult in the privacy of his own bedroom. She claimed that the fighting back against this decision was something that needed to be done by everybody, not just gays. This is because the decision that the court made violates the privacy that adults are entitled to in their sex life regardless of sexual orientation.

This could have been dangerous for heterosexual people too because it gives the government authority to invade their private lives. Justice Byron White wrote that sodomy between two gay individuals has historically been unlawful. Therefore, the court was not wrong in its decision to criminalize homosexual activity. Like Dred Scott, the decision caused havoc among the community it affected, as well as in the people who were outside of that demographic but were active supporters of the LGBTQ+ community. The decision also had a famous case that corrected the flaws in the decision and ultimately reversed it. This was the case of Lawrence v Texas and it is the parallel to the case of Brown v Board of Education.

Lawrence v Texas declared that state laws prohibiting sodomy were unconstitutional, therefore erasing the decision of Bowers V Hardwick. Benjamin Eidelson, an advanced student in constitutional law and legal theory, wrote that three years after the decision was made, the impact had not faded. Those against the decision argued that the court had abused of its power because the United States constitution does not speak on the question of same sex romantic relations and especially not sexual ones. He also brings up the Fourteenth Amendment of the constitution because it is what is debated the most when it comes to laws about sodomy.

He explains that though the Fourteenth Amendment was originally written with the intention of protecting blacks from state governments, it was later useful in protecting gay rights. Joseph Wardenski, a lawyer who frequently speaks on LGBT rights, writes that the Lawrence decision was a significant win for the gay community because it did not only decriminalize homosexual activity. In actuality, sodomy becoming legal meant that a lot of the stigma around being gay in American society was lifted because it was no longer legally associated with criminality.

The most recent Supreme Court case surrounding gay rights, and arguably the one most representaitve of the current climate, is “Masterpiece Cakeshop v Colorado Civil Rights Comission”. In this case, a gay couple sued a Christian baker because he refused to bake them a cake for their wedding for religious reasons. Mark L Movesesian, professor of contract law at St. Johns University, explains that the Supreme Court reached their decision in favor of the baker because the Colorado Civil Rights Commision was believed to be treating him unfairly. The commission had no issues with bakeries that were refusing to bake anti-gay ckaes, but it suddenly wrong for somebody with the opposite point of view to excercise their rights with private business.

The decision made in this case indicates that the United States judicial system has made very significant progress with gay rights, but just because one demographic is advancing, does not put their needs above another group in an unfair manner. Ultimate domestic tranquility will be reached in this country once people on both sides of the spectrum learn to accept opposing points of view. As long as individuals continue to be infuriated by the decisions others take with their private lives, a struggle for equality on the basis of inherent characteristics like race and sexual orientation will never disappear.

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