Flawed Justice and Selective Memory in Virginia

Last week Harry Lee Carrico (pictured at left), a former Chief Justice of the Virginia Supreme Court died and, if one were to believe the gushing press coverage in some quarters, one would think that Carrico was a pillar of judicial honor, valor and decency.  The press in its rush to praise Carrico has displayed a shocking form of amnesia - a type of amnesia all too prevalent in Virginia.  Forgotten in too much of the coverage of the 96 year old Carrico's death is that when a case called Loving v. Virginia reached the Virginia Supreme Court, Carrico wrote a unanimous opinion upholding the state’s miscegenation laws.  That's right, the Virginia Supreme Court ruling unanimously upheld the state's racist miscegenation law.  It's a mindset still alive and well at the Virginia Supreme Court.  A few years ago when I argued before that court on behalf of a state employee who was fired for being gay, the current Chief Justice, Cynthia Kinser (a former classmate of mine) appeared incensed at my suggestion that firing employees for being gay was a form of religious discrimination that the Court needed to strike down under the U. S. Constitution.  Instead, the Court followed Carrico's tradition and sided with bigotry.  A piece that reviews Carrico's true legacy is telling.  Here are highlights:

One of the infuriating things about Virginia is that one can never get away from its tendency to spin myths and construct a separate universe especially when it comes to what actually happened in its history.

A case in point is the coverage of the death of 96-year-old Harry Lee Carrico, the former chief justice of the Virginia Supreme Court, who figured in a landmark case involving racist, white supremacist laws during the Civil Rights era.

I realize that it may be bad form to criticize the recently dead, but the Carrico case is really quite recent and his important legal decision was so obviously wrong. Somehow this goes unmentioned in newspapers such as the Richmond Times-Dispatch which even under the ownership of Warren Buffett keeps trying to spin its own skewed version of the Old South.

The story starts in 1966 when Richard and Mildred Loving, a white man and African-American woman, decided to move back home to Caroline County from Washington where they had been legally married. Virginia was one of a dozen states back then that made it a crime for a white and a black to be married.

Police burst into their home in the middle of the night and arrested them. They were sentenced to a year in prison but the sentence was suspended if they agreed to leave the state. They appealed to the Virginia Supreme Court where Carrico wrote a unanimous opinion upholding the state’s miscegenation laws.

It didn’t take the U.S. Supreme Court long to squelch Carrico’s opinion which incredibly didn’t consider such critical earlier rulings, such as Brown versus the Topeka Board of Education, which ended the racial segregation of schools. In 1967, the high court said:  “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

Mind you this wasn’t 1848 or 1861 or 1896. This was 1966.   .  .  .  .  It really wasn’t all that long ago, yet Carrico was issuing rulings such as this.  .  .  .   To be sure, it is said that Carrico’s ideas about African-Americans changed as he grew older and he backed more minorities in the legal profession. But to ignore his most important ruling and to go on about how he always removed his Fedora when talking to a lady and how he was the longest-serving judge ever is a bit much.

Carrico is quoted as having said that he loves Virginia for its “sense of integrity” and that “there is just something about Virginia that makes her unique. I hope she’ll always be that way.”

In fact, Virginia is a state that desperately needed change. Carrico had the chance to make his mark and failed.

 

Is Obama Already Waffling on Support for Marriage Equality

Not much more than 24 hours after his soaring inaugural address Barack Obama seems to already be waffling on his support for marriage equality and seems to be running back towards his previous claim that marriage should be left to the states - a policy, which if followed years ago would see anti-miscegenation laws still enforced in parts of the South.  Sadly, it is the type of conduct that we saw over and over again during Obama's first term.  I for one had hoped that he had moved on and grown a spine.  Apparently not.  Here are highlights from the Washington Blade:

White House Press Secretary Jay Carney maintained on Tuesday that President Obama’s LGBT remarks in his inaugural speech weren’t an attempt to nationalize the issue of marriage.

“The President believes that it’s an issue that should be addressed by the states,” Carney said in response to a question from Politico’s Reid Epstein.

Mainstream media outlets asked Carney several questions to clarify Obama’s views on marriage because of the LGBT references he made in his inaugural address, which included an assertion that “our gay brothers and sisters” should be treated equally under the law “for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

NBC News’ Kristen Welker was first to ask whether the remarks — which suggested a national call to support marriage equality — represent a shift in Obama’s way of thinking from his previous position that marriage should be left to the states and not handled at the federal level.

“The President’s position on this has been clear in terms of his personal views,” Carney replied. “He believes that individuals who love each other should not be barred from marriage. He talks about this not about religious sacraments, but civil marriage. And that continues to inform his beliefs. We have taken position on various efforts to restrict the rights of Americans, which he generally thinks is a bad idea.”

Carney indicated that Obama believes Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional based on the belief that the federal government shouldn’t be involved in marriage.

Carney more clearly articulated that Obama believe marriage is a state issue, not a federal issue, in a response a follow-up question from Politico before reiterating other tenets of Obama’s belief on marriage.

The White House clarification is consistent with the views Obama expressed on marriage just before Election Day in an MTV interview when he said, “There’s some other states that are still having that debate, I think for us to try to legislate federally into this area is probably the wrong way to go.”

Apparently, Obama got the LGBT money and votes that he needed and now he's back to playing us for fools.  One can only hope that he doesn't treat other minority constituencies the same way.  It is precisely this attitude and behavior that demoralized Democrats in Virginia in 2009 and led to GOP statewide victories.  The White House seems to have learned nothing from that debacle. 

Indiana Attorney General Wants States to Ban Gay Marriage

In a move that will likely prompt Virginia Attorney General Ken "Kookinell" Cuccinelli to follow suit Indiana Attorney General Gregg Zoeller (pictured at left) plans on filing an amicus brief with the U. S. Supreme Court in the Prop 8 appeal.    Rather than admit that he's a gay hating bigot, Zoeller is using a smoke screen of claiming that as Attorney General he has responsibility to defend state's rights.  It sounds like just the kind of bullshit excuse that would appeal to Kookineeli who never missing an opportunity to denigrate and undermine the rights of LGBT Virginians.   It will be interesting to see whether Kookinelli jumps on this band wagon in the midst of his campaign for Governor.  As noted in previous posts, unlike virtually every other attorney general to run for Governor over the last 30+ years, Kookinelli has not reigned from office so as to avoid the appearance of (i) politicizing the dispensation of justice in Virginia and (ii) forcing taxpayers to help underwrite his insidious campaign.   Here are highlights from the Evansville Courier& Press:

Simply put, my legal obligation as attorney for my client, the Indiana Legislature, is to defend state laws legislators have passed. Indiana has a statute defining marriage as between a man and a woman. If the Supreme Court were to strike down a similar California law, Proposition 8, as unconstitutional, then it would put Indiana's statute at risk.

Under our system of justice, both sides in a case must be zealously represented. Although Indiana is not a plaintiff or defendant in either of the cases the Supreme Court will hear, our state and other states have an undeniable interest in asserting each state's legal authority to define marriage as it sees fit within its borders. That's why my office, representing Indiana, jointly filed a friend-of-the-court brief along with 14 other states that urged the Supreme Court to keep the marriage-definition legal authority at the state level.

In the two Supreme Court cases, we are not arguing to strike down the legal authority of other states to issue marriage licenses to same-sex partners, if those states so choose. Instead we defend the authority of each state to pass and enact its own traditional marriage-definition laws at the state level — either through its legislature or directly by voters if it has a referendum process.

Defining marriage is an intrinsic function of state government that ought not be stripped from states as happened to California in one of the cases now being appealed. This is an important question of our time and therefore we asked the U.S. Supreme Court to exercise its role in our constitutional process to provide answers. Representing Indiana's case is my responsibility as Attorney General, an obligation that I will do to the best of my skill and ability.

Apparently Zoeller is to stupid to realize that he has made pretty much the same case as was made by first those who claimed that states had the right to determine whether or not slavery would exist within their boundaries and later by those who supported anti-miscegenation laws.   It goes without saying that Zoeller is an ignorance and bigotry embracing Republican.