You Cannot Legislate Acceptance

Posted: March 31, 2013 in General
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The U.S. Supreme Court this week heard a couple of landmark, game changing cases in reference to marriage equality.  The whole country is anxiously awaiting the rulings on the constitutionality of DOMA and California’s Prop 8.  Even the most staid of conservative politicians and loudmouths feel that eventually there will be equality in marriage throughout the country, if not from federal legislation, than within some means of the states.  Depending on the outcomes of these decisions, states like my current home of North Carolina may have to rescind or modify in some way the state constitution’s codification of marriage as only that of one man and one woman.

The ever present cynic in me does not necessarily see a USSC overturn of these laws as an instant change in legislative practice nor do I see it being the pool of universal acceptance that many activists see it as.  The Supreme Court, the highest court in the land, actually has no law-making capacity in its powers.  It is strictly legal and judicial review, not legislative powers as determined by the Constitution.  It is not within the words or deeds of the court to mandate acceptance, diversity or equality, only to determine if any of those guarantees have been infringed upon.

The more militant among us will blame the court, the Justice department or hell, even the President for whatever the outcome may be from these two cases.  Some will do so because all they can do is listen to other ignorant bastards who pick and choose which lines from the Constitution they want to use to stir the pot.  Like many of the sheep who get sucked into cults, they listen to charismatic delivery of someone who knows how to take advantage of the disenfranchised and fire them up and stoke the flames of their ignorance.

On the flip side of the coin, should the Court decide that there is no Constitutional violation in either DOMA or Prop 8, the side in favor of change and who backed bringing these cases to the Court will be no less vehement in their disgust.  Just like both Houses of Congress have been for a long time now, the polarization between the sides will be ever present and the American people will suffer for it.

Should the outcome fall to the side of equality, and I personally hope it does, there is an assumption that it will lead to instant and gratuitous change for marriage equality.  After all, diversity will be codified by Constitutional decision and what could be more important than that?  I believe that simply because diversity will be the rule of law, that acceptance is not something you can enforce by law.  If it was, there would have been no need for sweeping civil rights laws almost 100 years after the 13th Amendment to the Constitution which made slavery, or more accurately the freedom of all individuals from enslavement regardless of who you are, was ratified by the states.  Even after Affirmative Action and numerous of equal rights laws were enacted, there was still a lack of acceptance.  Hell, to this day many states must submit any changes to their voting districts due to the population census to the Justice department in order to ensure that they have been drawn up appropriately due to past examples of exclusion and gerrymandering.

My prediction for these cases is that the Court will find DOMA un-Constitutional since it is essentially a codification of exclusion and prejudice in federal law.  They will find that it is a right of the states to determine what constitutes marriage or union at their level.  I think in order to reinforce their decision they will strike down Prop 8, but not in its entirety, but in such a way to provide a framework for the states to determine their own route to marriage equality or a semblance thereof.  One of the reasons Prop 8 will not be stricken down wholeheartedly is because it was voted by the people of California and if the Court does take the route of states rights, then it would be contradictory to their opinion.

Diversity is a word that is often misused in legal opinion.  It cannot and should not be defined by quota.  I do not use the services of a business and question why there is not a good blend of color or lifestyle.  I judge them on the quality of of service provided.  If that is at the hands of a staff that would do the United Nations proud in ethnic representation or at the hands of flamboyant rainbow representation it does not matter as long as the goods and services provided are commensurate with the fee paid.  No business owner, big or small, should be dictated how many of what should represent their workforce provided they are not intentionally excluding someone because of who or what they are.

You can legislate diversity.  You cannot legislate that it be universally accepted.  It would be a great world if everyone just got along, but one of the greatest, and most frustrating things about our country is that we are allowed to have our own opinions.  So much so that that is truly the heart behind our First Amendment to the Constitution.  We can be completely misguided and ignorant in our opinions and unless you intentionally try to do someone harm with them, we are completely free and uninhibited by law for having them and speaking them.

Diversity can be mandated by a vote and a signature.  Acceptance comes with time and exposure.  One of the great things about evolution is that it is not always proven with physical or outward appearances.  Sometimes it comes simply in the thoughts and actions of those who not long before were on the other side of the coin.

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