History Repeats: Civil Rights and the Failure of the State

So the machinery of the state grinds away, chipping at hard-won freedoms in the endless dance against progress—two steps forward, one step back.

The First Amendment Defense Act (FADA), a cleverly named law aiming to gut the constitutional protections provided by the First Amendment, is the latest step backwards.

Passed by the Georgia Senate, and pending approval from the House and Governor Nathan Deal, it grants that the “Government shall not take any adverse action against a person or faith-based organization wholly or partially on the basis that such person or faith-based organization believes, speaks, or acts in accordance with a sincerely held religious belief regarding lawful marriage between two people.”

The obvious target is same-sex couplings, but the language of the law is so vague that sanctioned discrimination could affect unmarried mothers seeking housing, unmarried sexual partners of any sex, homeless queers seeking shelter, and mixed-race couples. The General Assembly is ready to set the clock back sixty years.

But the State of Georgia has no actual constitutional right to do so.

Paragraph VII of the Georgia State Constitution’s Bill of Rights compels the “General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges, and immunities due to such citizenship.” The Supreme Court has ruled in favor of equality of marriage. Any law contrary to that ruling is unconstitutional by standards of both our federal and state governments.

Paragraph XXVIII states that rights listed within the Bill of Rights “shall not be construed to deny to the people any rights which they may have hitherto enjoyed.” Flat out, the General Assembly cannot enact law that twists the Bill of Rights to deny a United States citizen resident in Georgia rights to which they are entitled by virtue of citizenship. And even if they could, in regards to the exercise of religious worship the State of Georgia is clear: “no human authority should, in any case, control or interfere with such right of conscience.”

Is not sanctioned religious discrimination against citizens a means of controlling an individual’s right of conscience? Can you, Georgia, claim to protect my right to conscience when the Assembly tells potential employers their accountant need not factor my healthcare costs because I am a transwoman and my health needs and my conscience are not equal? Is reinforcing the conscience of bigot landlords who would discriminate against me, my brothers, and my sisters searching for rental housing not state interference and control?

And I’ll parrot the state’s own words to say, “the right of freedom of religion shall not be so construed as to excuse acts of licentiousness.” Yet, what license! What hypocrisy! Or am I foolish to think the letter of the law be followed, and not be twisted beyond value and meaning?

Yes.

Because that is what Georgia has done and will continue to do unless the people of the state demand a society where our supposed rights are actual rights.

Few of my peers realize that marriage equality in 2015 was made possible in large part by another landmark Supreme Court Case decided in 1967—Loving v. Virginia. In question was the constitutionality of an anti-miscegenation law, which had driven Mildred and Richard Loving from Virginia under threat of incarceration for their mixed-race coupling. The Supreme Court’s ruling for Loving struck down similar laws throughout the South, including Georgia. It would be 1979 when Georgia actually scrubbed its anti-miscegenation laws from the civil code in compliance with national law and reality.

That law had been challenged a century earlier in 1869 on the grounds that the constitution then—and still does—grant “[t]he social status of a citizen shall never be the subject of legislation.” The Georgia Supreme Court claimed not to see how legislation preventing interracial marriage was at odds with the section of the Constitution in question.

Georgia has, time and again, upheld reckless and hateful legislation that has been curbed only by national rulings, and coercive pressure from the Federal Government. This is unacceptable, and an offense to those who strove before us, died before us, and whose legacy forever remains in jeopardy to the interests of those small-minded few in power.

In a post last week for WUSSY, Julian Modugno urged readers to call the Governor’s office. That number is (404) 656-1776. Call again. Cite specific contradictions between FADA and our constitution. Let the office know that you expect a veto if the bill comes across his desk, and go further to say that if Deal signs the bill into law you will ask your representative to seek impeachment on grounds that he violated his oath of office in which he swore to uphold the State’s Constitution. Then call your representatives and urge them to consider your position.

But even if this long shot is a success, and FADA fails in the House or on the Governor’s desk, we will not fundamentally be any closer to guaranteeing citizens the rights of the state constitution. The defeat of FADA maintains the status quo, a baseline which abandons the needs and rights of Georgians who still battle for equal protection, equal pay, equal rights.  

So, make your calls.

But the work has only begun, and the road only becomes harder.

 


Stone Irvin is a musician, barista, and trans-cendent lady, and sincerely hopes you get off your duff and get involved in the fight for human rights in Georgia. ‘Cause change ain’t easy.