Reflections For “Constitution Day” 2009

Posted on September 17th, 2009 by Katherine Franke

Today is Constitution Day, the anniversary of the signing of the U.S. Constitution this day in 1787.   I’ll be one of the speakers at our Constitution Day event, and have put together these brief remarks to raise the question: to whom do the rights contained in the Constitution belong?

Fifty years ago police officers entered the bedroom of Mildred and Richard Loving in the middle of the night with flashlights and arrested them.  They charged them with a felony violation of the Commonwealth of Virginia’s miscegenation law.   They subsequently plead guilty and were  sentenced to one year in prison, but the judge agreed to suspend their prison sentence if they would not set foot together in the state of Virginia for 25 years.

The Lovings moved to DC, but missed seeing their families in Virginia.  So Mildred Loving contacted U.S. Attorney General Robert Kennedy about challenging the law.  His office referred her to the local chapter of the ACLU, not NAACP.   A nice white attorney at the ACLU took the case, but the Black community, including the NAACP, wasn’t altogether excited about a high-profile constitutional challenge to Virginia’s miscegenation law being brought at that time.  Interracial marriage was not the top on their list of things to fight and, as you see from reading the black papers at the time, there was no small amount of discomfort in the black community itself about a black woman marrying a white man.

The NAACP later got involved in the case when it went to the Supreme Court, submitting an amicus brief.  And as we all know, a unanimous Supreme Court found that the Virginia statute violated the Constitution because it was  “designed to maintain white supremacy.”    This is the only time that the Supreme Court has found any form of state action to be based in “white supremacy” rather than merely discriminatory – strong words indeed, and a very important precedent was established.

Today, a group of gay and lesbian couples have found two very well-known heterosexual attorneys to represent them in a Constitutional challenge to Proposition 8.   The lawsuit, Perry v. Schwarzenegger, was filed in federal court in California over the strong objections of the leadership of the lgbt community.  The lawyers in the case, Ted Olson and David Bois have gone so far as to oppose the lgbt groups’ efforts to join the case, while having no opposition to the motion to intervene filed by the Prop 8 proponents.

Ted Olsen said, in response to the lbgt community attorneys’ objections:

“David and I have studied constitutional law longer than we’d rather admit, and I think we know what we’re doing … this case is about the equal rights guaranteed to every American under the U.S. Constitution.”

But is it?  What does it mean that this case is only about the rights contained in the Constitution?  The U.S. Constitution is a living breathing document that is just a piece of paper until it is brought to life by real people in the real world. More than that, the rights it contains are won and lost in a social context that goes beyond the conclusions of a couple smart lawyers.

The Loving and Perry cases raise some hard questions for all of us who treasure the rights enshrined in the Constitution.  Who do rights belong to?  All of us surely, but it’s more complicated than that.   How do they belong to the plaintiffs in these cases who are determined to bring a rights-based lawsuit on their own behalf, in their own names, regardless of what the lgbt mandarins think they should do and how agendas should be set?  On the other hand, do attorneys such as Bois and Olsen owe no duty to communities affected by the outcomes of these cases?  A duty to consult?  A duty to follow their collective, reasoned advice?  A duty to work together?  These are complicated problems of ethics and responsibility that the Loving and Perry case make hard to resolve easily.

The community lawyers didn’t want to bring the Loving case, yet its resolution in the Supreme Court established one of the most important legal precedents in favor of racial and sexual equality. When you look at the federal judiciary today, including the Supreme Court, a judiciary that has largely been captured by conservative judicial ideologues, it’s hard to be very sanguine that the injustice of denying marriage rights to same sex couples will be as obvious to them as it has been to Bois and Olsen.  But maybe I’m wrong.  Or maybe a big loss in the Supreme Court will fuel a more aggressive response in state legislatures to undo the injustice perpetrated by the Court.  Who konws?

In the end, how the Perry case turns out is only one of the issues that should concern us.  There is a deeper question about who gets to decide when and how a manifest injustice is remedied.  Smart lawyers, community lawyers, individuals, or someone else?  These are hard problems that boil down to who owns these rights, and who owns the injustice when rights are being abridged.

Happy Constitution Day


  1. What is there to lose?

    A decision against the plaintiffs simply upholds the current status quo.

  2. And if they win based on wrong arguments, like because they would like to have children?

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