Monday, July 3, 2023

What Goes Around, Comes Around

 

image from upload.wikimedia.org


In the past week, the United States Supreme Court has solidified and endorsed institutional racism and the exclusion of LGBTQIA+ people from places of public accommodation. The 14th Amendment that the majority cited to end Affirmative Action is the same one that they failed to use in allowing a web designer to not only refuse to serve same sex couples, but to literally put up a sign telling them that are not welcome and why. We have seen these signs before. I actually googled some to post with this blog entry, but I could not bring myself to add one here. You know the ones I mean.

These two decisions are the like the Wonder Twins of exclusion and privilege (remember when they would unite on Saturday morning TV?) If united, these decisions basically say you cannot consider race (or I suppose any protected class) in making decisions about admitting students to colleges and universities but you can consider sexual orientation (or I suppose any protected class) in determining if they can enter your business (if you claim you are in the business of “speech”).  So, the 14th Amendment requires absolute neutrality…except when it doesn’t!? So currently, equal protection offers neither equality nor protection. Sigh. The dissents were personal, angry, and bleak.

When I was a teenager and my most difficult moments were when friends would suddenly exile me from the friend group (much more innocuous before social media, thankfully), my mother would comfort me by saying that what goes around comes around. I found this to be little comfort at the time -- most likely because it required patience, which I lacked (and still do).

And it does not solve the problems created last week by the Court either-but there is a little to it here: if we are all spending so much time and intellectual effort figuring out how to work around the Court’s decisions, then the result could be that the Court’s decisions will be less meaningful over time. Perhaps the six member majority has essentially (but not immediately) rendered the Court’s opinions superfluous. Have they relegated themselves to mere consultants about the law rather than the arbiter of what is essentially Constitutional--a power they claimed in Marbury v. Madison, 5 U.S. 137 (1803)? Will this impotence be what comes around?

I’m unwilling to be patient and just sit back and wait. I don’t need friends like the ones who signed on or concurred in those decisions.

(Liz Stillman)

https://lawprofessors.typepad.com/academic_support/2023/07/what-goes-around-comes-around.html

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