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Order and Disorder in the Courts

Whereas the Court is still looked upon with suspicion for its hasty ruling on the 2000 Presidential election, we note a couple instances where it has affirmed common sense. Then let us turn our attention across the Atlantic, where another court indulges in folly.

Mike Mosher

July 27, 2003

Maybe it's the heat, or the longer days to slow down and sensibly reflect. Summer began with some sunny decisions from the United States Supreme Court. Whereas the Court is still looked upon with suspicion for its hasty ruling on the 2000 Presidential election, we note a couple instances where it has affirmed common sense. Then let us turn our attention across the Atlantic, where another court indulges in folly.

The Supreme Court ruled on cases challenging two University of Michigan admissions policies that litigants claimed to unfairly favor minority applicants and to discriminate against whites. The court upheld the U of M Law School Admissions policy that considered minority status positively as one factor among many, with a 5 to 4 vote. Justice Sandra Day O'Connor may have been more swayed by arguments that diversity enhanced the learning environment for the majority rather than do right by minorities. Justice Anthony Scalia grumbled that the Law School should merely lower its standards to admit more minorities.

The court then struck down the point system for undergraduate admissions, which awarded minority applicants 20 points, with a 6 to 3 vote as a violation of the Equal Protection Clause. Justice Clarence Thomas, whose own career has long been blessed by affirmative action, included quotes from an overly- optimistic address by Frederick Douglass to abolitionists in 1865 in his opinion, where Douglass said "If the negro cannot stand on his own legs, let him fall." Thomas' de-contextualized citation is as egregious a misuse of African American history as President Bush opining against Michigan's affirmative action policies on Martin Luther King's birthday.

Yet these rulings don't necessarily level the playing field for applicants, for University of Michigan admissions policy still allows 20 points that may be awarded "at the Provost's discretion". Nevertheless, the undergraduate admissions ruling could be used to buttress a suit brought against a university for awarding points for legacies, the children of its previous graduates. This would overturn one hallowed "affirmative action" policy long benefiting white people.

A week later a majority of the court made a major decision bringing America's homosexual citizens nearer equality. Justice Anthony Kennedy wrote in the majority opinion "When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres...The state cannon demean their existence or control their destiny by making their private sexual conduct a crime". The court majority — Justices Stevens, Souter, Ginsburg, Breyer and O'Connor — decided "adults may choose to enter upon a relationship in the privacy of their homes and their own private lives and still retain their dignity as free persons."

Plaintiffs John Lawrence and Tyron Garner were arrested in Houston in 1998 under Texas' thirty-year-old anti-sodomy law banning oral or anal sex among same sex couples but not heterosexuals. The men were arrested when sheriff's deputies entered Lawrence's apartment seeking a crazy gunman, instead finding a lover not a fighter, in flagrante. The Court's decision overturned its 1986 ruling upholding Georgia's anti-sodomy statute (since repealed), and invalidated remaining sodomy laws in twelve states. In one instance of their dismantling, that same day a bipartisan effort to repeal the Michigan anti-sodomy law was introduced into its state legislature.

Chief Justice Rehnquist and Justices Thomas and Scalia dissented, and Scalia fumed "Today's opinion is the product of a court...that has largely signed on to the so-called homosexual agenda." He bemoaned the ruling "effectively decrees the end of all morals legislation" and threatens "a massive disruption of the current social order" as "state laws against bigamy, same sex marriage, adult incest, prostitution, masturbation (huh?), adultery, fornication, bestiality and obscenity are likewise...called into question." Morals should not be legislated in any land that prides itself on liberty. The court's decision has already fueled efforts to legalize same-sex unions and laws banning workplace discrimination in civilian and military realms.

In a short jump from sodomy to the British royal court, Prince William celebrated his 21st birthday party in what the Associated Press called "an African-themed dress party". The photogenic blonde princeling beamed "I thought it would be quite fun to see the family out of black tie and get everyone to dress up". One fears he considered adding "in black face".

Now the young man's desire could be innocuous. Perhaps he merely wanted to hire a few hot Nigerian highlife bands that he'd heard someplace. African dress, expansive in fabric, would be certainly merciful in summer to the middle-aged bodies of sodden Lords and noble matrons among the 300 family and friends invited. Yet the very name of the party "Out of Africa" evokes author Isak Dinesen in the days of European empires subjugating Africans. As the Baroness Blixen, she and the Baron exploited east African labor for imports from their plantation. One Bad Subject compared Prince William's Africana to entertainment for King James I in 1613, a Ben Jonson-penned "Irish Masque" that celebrated Irish subjugation by featuring a pair of downtrodden Irish subjects, imported and probably enticed to dance a jig. Don't forget that until too recently, Britain still quartered troops in Belfast and Derry.

London contains Jamaican toasters — one rich stream flowing into the Hip-Hop tradition — who could be called upon for celebratory lyrics. Instead the British royal court attempted to honor African Diaspora traditions in a clunky "rap" delivered in honor of P-Willie by poet laureate Andrew Motion (who sports a great name for a DJ), more at home in a traditional sonnet. Prince William chirps that he's "been on safari several times" and is currently "teaching himself Swahili". He claims to have the social consciousness of both his father and late mother, concern for issues like homelessness. Africa is in a dire economic and political condition, at its worst since decolonization began forty years ago, and needs more subtle attention than English royalty booty-shaking in fancy feathers.

Imagine how truly regal the young man would be were he announce "On the occasion of my birthday, I've asked grand mum — the Queen — to instruct Mr. Blair to ask Parliament to commit our nation's entire military budget for five years to the eradication of AIDS in sub-Saharan Africa, and to the social conditions that further it and other diseases." There's a snowball's chance in summer that we'll get to see that. George Bush's announcement he's sending American troops to push regime change in Liberia indicates the kind of cold cures for Africa's woes the powerful nations now offer.

Around the world and in its law courts, myriad struggles for racial, sexual and social equality go on, whose very existence fails to register among royalty and their sycophants.

Mike Mosher is a member of the Bad Subjects team, whom he thanks for the discussion of Prince William that informed this piece.

Copyright © 2003 Mike Mosher. All rights reserved.