The McDonnell administration has doubled down on its antipathy toward LGBT Virginians (with the Family Foundation claiming credit in an email blast). Last Friday the Virginia Department of Taxation announced a new state tax policy that discriminates against married same-sex couples by denying…
On September 17th, we will celebrate the 226th birthday of our Constitution. But what precisely should we celebrate?
In the summer of 1787, the founders created a remarkable framework for our democracy — but their document was deeply flawed.
Individual liberty was not protected from the power of government in the original Constitution submitted for ratification. The founders had to add a Bill of Rights to reflect a broader vision of freedom.
Even with the Bill of Rights, the Constitution remained flawed — it protected slavery and it denied women basic rights including the right to vote.
The Constitution we celebrate today, a document guaranteeing equality before the law, required a bloody civil war before amendments brought black Americans within the Constitution.
It took more than 175 years after the Constitution was written before civil rights laws outlawed discrimination in employment, housing, and public accommodations. And, it took over 175 years before the Voting Rights Act invalidated Virginia’s constitutionally imposed poll tax and literacy test.
What is true for the struggle for racial equality is also true about the struggle for other liberties.
It was not until 1920 that the 19th amendment gave women the right to vote. This was not due to the wisdom of the founders and the original Constitution, but to the struggle in the streets that followed. In Virginia, a report issued in 1941 concerning the poll tax and other barriers to voting imposed on black voters by Virginia’s 1902 Constitution said that “fear of large numbers of Negro women voters” fueled opposition to the women’s suffrage amendment that was “decisively rejected” by the General Assembly and not officially ratified by our legislature until 1952 – more than three decades after it became part of the Constitution.
If the framers knowingly left out blacks and women, they didn’t even consider the rights of LGBT people, children, students, prisoners, the mentally ill, immigrants and those with physical disabilities. For nearly all of our history, these groups were largely unprotected by the Constitution. But one by one, they and their advocates have fought to have the Constitution and Bill of Rights apply to them.
But what happens when the government violates the Constitution — when it makes a law restricting free speech or religious liberty?
The conventional answer is that the courts will step in. But courts don’t act on their own. They are powerless to fulfill their function unless an aggrieved person challenges the constitutional violation.
In 1910 the NAACP was established, followed in 1920 by the ACLU. They gradually developed the resources to challenge constitutional violations on behalf of people who could not have done it alone: Tennessee school teacher John Scopes would not likely have challenged the law making it a crime to teach evolution without the help of the ACLU and its volunteer attorney, Clarence Darrow.
And it’s not likely that Oliver Brown could have challenged school segregation in 1950 without the Thurgood Marshall and the NAACP.
So when we celebrate our Constitution, we celebrate not only the remarkable document drafted 226 years ago at the Philadelphia Convention, and not just those who first penned rights on to parchment.
We also celebrate the men and women who took that document seriously, who fought to make those rights a reality and expand its protections to those left out — who risked their lives to fight for the constitutional rights of all Americans.
We celebrate Frederick Douglass in the 19th Century and Jackie Robinson, who broke baseball’s “color line” in the 20th Century. We celebrate Oliver Brown, who bravely walked his daughter Linda to their neighborhood school, previously restricted by law to white children.
We celebrate Rosa Parks and Martin Luther King, Jr., Medgar Evers, Viola Liuzzo and the murdered civil rights workers who were dumped in a Mississippi dam in the summer of ‘64.
We celebrate Barbara Rose Johns and the students at Moton High School who challenged massive resistance. We celebrate Richard and Mildred Loving who simply wanted the freedom to marry and sought help from lawyers who became the founders of the Virginia ACLU in 1969..
Finally, we celebrate those who had the vision to create organizations like the NAACP and the ACLU that make it possible to enforce the Constitution and allow people to assert and defend their constitutional rights, and to challenge government abuses.
Recently, the American Civil Liberties Union of Virginia (ACLU) sent a letter to the Fairfax County School Board thanking the Board and Superintendent for upholding free speech in two recent cases: a parent’s attempt to have a book removed from the curriculum; and a request that a community group be denied permission to use school property for a controversial meeting. The school division denied the requests in both instances.
As is often the case, the ACLU’s support for the Board’s decision to allow a controversial group to use school facilities drew criticism from some who believe that “hate speech” should be not be sanctioned in any way. One critic was particularly offended that the ACLU would support the right of a person whose views are anti-Muslim to speak in a public school facility.
Since 9/11 the ACLU, nationally and in Virginia, has been one of the major voices against anti-Muslim discrimination, and we shared our critic’s disgust with the abhorrent views of the proposed speaker and the group she represents. Nonetheless, the principle of equal access to public property, even for people with abhorrent views, has its foundations in the US and Virginia Constitutions, and it is a principle we are obligated to protect as guardians of everyone’s civil liberties regardless of our agreement or disagreement with their views.
The First Amendment protection of free speech is based on several important premises. First, government must not be allowed to decide what speech has value and what speech is worthless. When government gets to make these choices, free expression and free thought are diminished. For example, our government has in the past tried to restrict ideologies that it finds distasteful or dangerous, such as communism, ban books that it finds obscene, such as Lady Chatterley’s Lover, and deny parents the right to teach their children the parents’ native language. These cases illustrate why government should not be given the role of deciding what speech will be allowed.
Second, the First Amendment presumes that the best way to reach the truth is for all competing ideas to be spoken and heard. Thus, when voices are raised in support of racism or homophobia, the best remedy is for proponents of freedom and equality to raise their own voices.
In order for these free speech ideals to be realized, people of all viewpoints – even the most vile — must be allowed equal access to public property. When a public school division like Fairfax opens up its facilities to community groups, free or for a fee, it creates a public forum, similar to the streets and parks, in which equal access is required, regardless of viewpoint.
As the national ACLU has written,
Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU’s successful defense of civil rights demonstrators in the 1960s and ’70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis whose right to march in Skokie, Illinois in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler’s concentration camps during World War II, commented: “Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened.”
In our view, the “cure” for bigotry is not suppression of bigoted speech; it is doing the hard work of building communities where diversity, tolerance and acceptance are valued and embraced, and bigotry has no safe harbor.
Elizabeth Wong, Associate Director of the ACLU of Virginia, describes in a new post on the ACLU’s blog how religious or faith-based groups that appear regularly before the General Assembly (e.g., the Family Foundation, the Independent Baptists and the Catholic Conference) are arming their multiple lobbyists with new rhetoric in their effort to advance legislation that will impose one set of religious beliefs on everyone:
"For years, representatives of Virginia religious organizations and faith-based groups have sought passage of legislation of varying sorts – for example, restrictions on access to birth control or state-sanctioned school-sponsored prayer— explicitly acknowledging that such legislation is intended to enact their religious beliefs and values into law and override the beliefs of others. That strategy has been largely unsuccessful in the court of public opinion and in the courts of law. So, the new thing is that similar initiatives are not being described honestly as seeking to codify the religious beliefs of their advocates, but as laws needed to protect religious liberty or free speech.
As long-time advocates for both First Amendment freedoms, however, the ACLU of Virginia knows the difference between laws intended to elevate or establish one religion over others and laws intended to protect the right of all people voluntarily to speak freely about their beliefs. We also know the difference between a law designed to permit discrimination and one designed to protect everyone’s right to practice his or her faith without government restriction.”
For more on this trend and a description of the bills now pending before the General Assembly that are religious establishment clause bills dressed in new ball gowns, or sheep’s clothing, read more of Elizabeth’s blog post at https://acluva.org/10939/a-wolf-in-sheeps-clothing/