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Posts Tagged ‘Justice Thomas’

Fraternité, Sure; Liberté, égalité? — Not So Much

January 28th, 2011 2 comments

http://cdn.wn.com/pd/5d/0f/ca1a2b70733d3a2f02630baca86d_grande.jpg

(cross-posted from 365gay.com)

What should we take away, if anything, from today’s unanimous decision by the French Constitutional Council holding that same-sex couples don’t have the right to marry? After dusting off my French and taking some time to read through it, I have a few thoughts.

The most general point is this: There’s not much of interest in the decision for American legal jurisprudence, even though the legal theories discussed are the same as those considered here: liberty and equality. (All that’s missing from the French motto is “fraternité”).

First, the relationship between court and legislature is quite different in France – a civil law country – than it is in common law nations like the U.S.

To oversimplify, French courts are far more deferential than are ours. While the term “activist court” is tossed around carelessly, it’s undeniably true that the American judiciary is, and has long been, far more willing to declare legislative determinations unconstitutional than have courts in civil law countries. That’s because the civil code is presumed to lay out the law clearly and comprehensively, and the court’s role is seen as more technical – the judges “simply” apply the law to the case before them.

So it’s hardly unexpected that a French court – even a constitutional court – would defer to the legislature. Indeed, the very brevity of the decision highlights the dearth of careful, considered legal analysis the court undertook. I took these points from the decision:

  • Those challenging the law argued that denying them the right to marry was a restriction on their constitutionally guaranteed liberty, a liberty that includes the right to conduct a normal family life (“mener une vie familiale normale”). The court breezily dismissed this claim, noting that the couple could either cohabitate without marriage or enter into a civil union (“le pacte civile”). Any U.S. court considering the claim today would have given weight to the argument that barring people from marriage is an interference with what society — pointedly, even coercively — considers a normal family life.
  • As for the equality claim, the court – again, with no analysis – declared that same-sex couples aren’t equally situated to opposite-sex couples when it comes to marriage, and that the legislature could therefore have decided to treat them differently. Again, a U.S. court would be expected to devote (too) many pages to a discussion of the “similarly situated” question, however the court ultimately came out on the issue.
  • Generally, the court deemed the issue purely one of legislative line-drawing, in its way no different from age restrictions and (even) procedural requirements for marriage. The court did invite the Parliament to reconsider its line-drawing in this instance, but its invitation has no “teeth.”

Will this decision influence anyone here? I might expect the rabid right to jump on it – even though it’s from France, of all places – but we shouldn’t let them get away with it. This is really a decision with little analysis, and with no real legal analogue to the relationship between the judiciary and the legislature that exists here.

And, in a delicious irony, the conservatives on the U.S. Supreme Court can’t get any traction from it, either. After all, to quote Justice Thomas from a 2002 death penalty case: “[T]his Court’s … jurisprudence should not impose foreign moods, fads, or fashions on Americans.”

For once, I agree with him.

Affirmative Action in the Year 3000?

July 20th, 2009 No comments

Well, I hope not. In today’s New York Times, Ross Douhat compares Justice O’Connor’s “expectation” that the need for affirmative action will fade within the next generation with soon-to-be Justice Sotomayor’s “hope” that the end is near for such preferences:

“O’Connor didn’t hope; she expected. And Sotomayor’s record suggests that there’s a considerable difference between these postures — that for the nominee, as for most liberal jurists, as long as racial disparities persist, so too must racial preferences.

“This is the big question underlying both the ‘wise Latina’ contretemps and the controversy surrounding Sotomayor’s role in Ricci v. DeStefano. Whither affirmative action in an age of America’s first black president? Will it be gradually phased out, as the Supreme Court’s conservatives seem to prefer? Or will it endure well into this century and beyond?”

Douhat is firm that, as America moves into an age where whites are no longer the majority, affirmative action must end:

“As this generation rises, race-based discrimination needs to go. The explicit scale-tipping in college admissions should give way to class-based affirmative action; the de facto racial preferences required of employers by anti-discrimination law should disappear.

“A system designed to ensure the advancement of minorities will tend toward corruption if it persists for generations, even after the minorities have become a majority. If affirmative action exists in the America of 2028, it will be as a spoils system for the already-successful, a patronage machine for politicians — and a source of permanent grievance among America’s shrinking white population.”

Douhat’s error is in placing all minorities into a blender, and then hitting “puree.” It’s not that simple. African-Americans  are differently situated than other minorities. While the percentage of all minorities increases, the African-American population, while to a small extent enriched by African immigrants, remains fairly stable and still tied to a slave ancestry that bears no resemblance to voluntary immigrants and their descendants. It is the increase in these latter groups that mostly explains the “post-white” majority to come.

There are all kinds of arguments and data that one might muster in support of this position. But here’s something much simpler, a snapshot of statistics from just one Philadelphia High School:

SCHOOL PROFILE
SAYRE HIGH SCHOOL
Location #110

HIGH SCHOOL REGION

Demographics

School Year: 2008-2009
Grade Organization: 9-12
Enrollment: 640

Race/Ethnic Composition

YEAR African
American
White Asian Latino Other

So this is a school that’s almost entirely African-American. Now here are some scores on the standardized Pennsylvania System of School Assessment (“PSSA”) tests for that same school:

Percentage of 11th Graders Scoring Advanced in Math

 

2004

2005

2006

2007

2008

School    

0.0%

0.0%

.7%

Philadelphia

9.7%

9.8%

12.4%

11.6%

12.7%

Pennsylvania

24.8%

26.3%

28.1%

24.2%

25.9%

Percentage of 11th Graders Scoring Proficient in Math

 

2004

2005

2006

2007

2008

School    

1.1%

7.6%

11.2%

Philadelphia

13.2%

13.3%

14.5%

19.4%

19.9%

Pennsylvania

24.3%

24.6%

23.9%

29.5%

30.0%

Percentage of 11th Graders Scoring Basic in Math

 

2004

2005

2006

2007

2008

School    

12.4%

18.5%

16.4%

Philadelphia

16.8%

16.8%

13.9%

18.3%

15.7%

Pennsylvania

19.8%

18.7%

17.7%

19.8%

17.6%

Percentage of 11th Graders Scoring Below Basic in Math

 

2004

2005

2006

2007

2008

School    

86.5%

73.9%

71.7%

Philadelphia

60.4%

60.1%

59.2%

50.7%

51.8%

Pennsylvania

31.0%

30.5%

30.4%

26.6%

26.6%

Percentage of 11th Graders Scoring Advanced in Reading

 

2004

2005

2006

2007

2008

School    

0.0%

1.1%

3.3%

Philadelphia

8.2%

10.4%

10.8%

9.6%

13.3%

Pennsylvania

26.8%

33.6%

31.2%

28.9%

31.8%

Percentage of 11th Graders Scoring Proficient in Reading

 

2004

2005

2006

2007

2008

School    

10.1%

20.9%

17.9%

Philadelphia

18.8%

20.2%

22.3%

25.5%

24.0%

Pennsylvania

34.0%

31.4%

33.9%

36.5%

32.9%

Percentage of 11th Graders Scoring Basic in Reading

 

2004

2005

2006

2007

2008

School    

20.2%

28.6%

29.1%

Philadelphia

19.6%

14.4%

19.7%

19.4%

20.9%

Pennsylvania

17.4%

12.9%

16.3%

15.3%

16.2%

Percentage of 11th Graders Scoring Below Basic in Reading

 

2004

2005

2006

2007

2008

School    

69.7%

49.5%

49.7%

Philadelphia

53.4%

55.0%

47.2%

45.5%

41.8%

Pennsylvania

21.8%

22.0%

18.5%

19.3%

19.0%

71.7% in 2008 are below basic in math; about half are below basic in reading. Since 2006, the numbers have begun to improve, but that’s cold comfort. For 11-grade math, the state defines “basic” as the ability to do simple algebra and geometry, to read and interpret graphs, and to perform operations with square roots and exponents. For reading, it’s quite simple: The student is competent with “below grade -level text only” and “requires extensive support to comprehend and interpret fiction and non-fiction.”

Those are facts. It’s Douhat who’s trading on “hope.” He’s right about the importance of class, but the idea that class and race (especially “black”) can be separated so as to yield a more representative society (or college entering class, anyway) seems fanciful in light of these data. The two are often inseparable.

Here’s more of Douhat’s piece:

“Affirmative action has always been understandable, but never ideal. It congratulates its practitioners on their virtue, condescends to its beneficiaries, and corrodes the racial attitudes of its victims.”

The last sentence has a nice cadence, but doesn’t hold up well to scrutiny. The first piece seems defensive (maybe it is virtuous, and perhaps even morally required; if so, there’s nothing to congratulate oneself for any more than one should praise oneself for not robbing a bank). The second is in the eye of the beholder: Justice Thomas hates affirmative action; Justice Ginsburg, who identified herself as a beneficiary, defends it. The third is ambiguous: What does Douhat mean by “corrodes the racial attitudes”?(Does he mean something different from “condescends to its beneficiaries”? I can’t tell.)

President Obama’s story is remarkable. But it’s an immigrant, polyglot story; not a tale of someone from the ‘hood rising to prominence. Spend a week in a Philadelphia High School and tell me whether you think the end of affirmative action is near.