Identity Days: Sonia Sotomayor, Proposition 8 and being American

By Imani Perry
Guest Contributor

Today is a day of contrasts. President Obama nominated 2nd circuit appeals court judge Sonia Sotomayor to the United States Supreme Court. If Sotomayor is confirmed she will be the first Latina/o on the nations highest court. This is unquestionably a sign of progress for our nation. A Nuyorican product of the Bronx who was raised in public housing she is a noteworthy representative of the brilliance and potential that exists in the most neglected sectors of our society.

Also today, the state of California upheld Proposition 8, a ballot measure that changed the California state constitution to define marriage as a union between a man and a woman, thereby withdrawing the right of same sex couples to marry, a right the court had affirmed just last year. This is obviously a step backward in the march towards inclusion and equality that Obama’s election symbolized for millions of people here and abroad.

One thing is clear: the culture wars that marked American political and social life in the 1990s are not dead. But something about them has changed. In the 90s, it was the political left who were identified as those who had identity politics, who talked about race, class, gender, and sexual orientation as framing their experiences and perspectives. This attention to identity was useful for expanding our ideas about everything from housing and education to reproductive rights and criminal law.

Nowadays, the right wing has become experts at identity politics too. They talk about their religion and regional cultures, and how those things shape their values. Think, for example, about how much more you know about the ethnicity, culture and religion of the conservative justices on the Supreme Court as compared to their liberal counterparts. Moreover, the conservative justices identities clearly frame how they interpret the Constitution. And more broadly, for the right wing, religious beliefs and cultural practices have become central to their political and legal ideals.

The difference between the left and right on this score, however, is whereas identity politics on the left has been used to argue for an expansion of rights and opportunities, on the right they are used to narrow the scope of rights and opportunities, and exclude citizens and residents of our nation from many of its benefits.

The Supreme Court has recognized that marriage is a fundamental right. It is a right, therefore, that all citizens theoretically possess. In constitutional law, when a state denies a fundamental right, and that denial comes before the Supreme Court, it is automatically subject to strict scrutiny, the highest level of scrutiny the court applies to state action. In order for the state’s action to be considered constitutional, and therefore upheld, it must be “narrowly tailored to meet a compelling state interest.”

As someone who has spent the better part of my adult life studying the Constitution and issues of inequality, among other things, I cannot understand how in good conscience anyone could argue that denying same sex couples to marry is a compelling STATE interest. It may be an expression of a particular religious or cultural perspective, and a given denomination or congregation has the First Amendment right to express their disapproval of same sex marriage now just as they did (and some still do) of interracial marriage. But denying one group of citizens access to their fundamental rights and justifying it by citing the religious and cultural beliefs of another group of citizens is plainly unconstitutional.

If we want to successfully work together while embracing our diverse cultures, religions, politics, and many other identity markers, it has to be done with a respect for some basics of human and constitutional rights.  Our Constitution at best operates as a common ground for citizens, cutting across difference to clearly define what it means to belong to a nation. We share rights and responsibilities.

Culture and ideology, whether it be the tyranny of the majority or the power plays of elites, should not ever be used to desecrate that common ground. When guaranteed rights are denied it is the hallmark of such desecration.

Eventually the Supreme Court will find itself addressing the issue of same sex marriage, likely over the issue of whether one state, which denies same sex marriage, must recognize the same sex marriage of another state. At this point, it is worth noting that the parallels to the history of interracial marriage are significant. During Reconstruction, several southern states allowed interracial marriage for a few years only to withdraw that right when southern white majorities recovered power during an era they called Redemption. “Redemption” was dedicated to reestablishing white supremacy through law, policy, violence, and social norms.  The California Supreme Court’s decision to snatch away a right so recently granted and so hard fought for is eerily similar. It is to our national disgrace that we are allowing the kind of practice that marked one of our darkest historical moments to be repeated just as we began to hope.

I believe that if Sotomayor joins the Court, a woman who not only benefited from the expansion of opportunity created by social justice movements, but who used that opportunity to build a remarkable career as a jurist, she will aid us in turning the tide away from contraction and exclusion, and towards expansion and inclusion in American law.

Pray that we’ll find ourselves with such a smart and accomplished judge to tend to our precious common ground.

Imani Perry is a professor at the Center of African American Studies at Princeton University.

Comments

[uglyblackjohn]

The ruling in the case of Prop. 8 was the smart move.
Strike down the law (passed by voters in a constitutionally (state) appropriate manner) and the whole process gets held up in court for another decade.
Uphold the law and allow another vote in two or three years.

In this case - a "loss" is really a win.

[tyrell]

Its not a given that Sotomayor will be against any kind of a nude negro law. Stranger things have happened. Clarence Thomas would probably be in favor it. Being one of the so called elites, he would get an exemption if anything like that was ever passed. Being in non tropical VA, he doesnt have to worry about it much anyway.

[A Real Black Person]

This article will make some readers, especially those on the Libertarian end of the political section, ask why there needs to be a Supreme Court in the first place.
If individual states did a remotely decent job of defending Consistutional rights, there wouldn't need to be a Supreme Court.

From the Libertarian point of view, freedom is best garanteed by the Individual.

Federal Government < State < Individual

But if the Federal Government, which is made of individuals cannot garantee rights, how can my next-door neighbor, also an Individual, be better at garanteeing me my rights?

Because he believes in Jesus, has a gun and has a an inability to compromise on anything?

That's the corrupting feature of government isn't it?: Compromise.

Compromising and co-existing with people who are not like you.

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Want to successfully work together while embracing our diverse cultures, religions, politics, and many other identity markers, it has to be done with a respect for some basics of human and constitutional rights.