Jan 22

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Constitution Check: Can one word make constitutional history?



Posted 1 year, 2 months ago.

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President Obama speaks at inaugural

President Obama speaks at inaugural

Lyle Denniston looks at President Barack Obama’s historic discussion of gay rights in his inaugural address, and its constitutional significance.

The statement at issue:

“We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still, just as it guided our forebears through Seneca Falls, and Selma, and Stonewall…”

– President Obama, second inaugural address, at the Capitol, January 21.

We checked the Constitution, and…

Ideas that are nowhere mentioned specifically in the Constitution can become a part of the basic document’s history, because some moving force in society makes that happen. When the moving force turns out to be America’s president, that can happen instantly. That might have been what the nation witnessed during President Obama’s second inaugural address Monday.

By adding a single word to a phrase about equality, he elevated gay rights to rank as importantly as women’s rights and the rights of racial minorities.

It has been known for some time that this president strongly favors constitutional equality for gays and lesbians. He strongly supported–and ultimately won from Congress–the end of the “don’t ask, don’t tell” policy that made it almost impossible for homosexuals to serve in the military services and be true to their own identities.

After a period of contemplation, President Obama supported at least some form of legal equality for same-sex marriage, and he explicitly endorsed his lawyers’ conclusion that the Defense of Marriage Act’s ban on federal benefits for married gays and lesbians violates the Constitution. His lawyers will be making that point directly to the Supreme Court in coming weeks.

But as important, practically and symbolically, as those gestures have been, the president went beyond them in his second inaugural address on Monday. He put gay rights at the top of his second-term agenda by referring, without explanation, to “Stonewall.” It perhaps is not a word that has meaning for many Americans, but it holds the deepest meaning for gays and lesbians; for them, it marked the beginning of their movement toward equality.

On June 28 and 29, 1969, at the Stonewall Inn in New York City’s Greenwich Village, police raids on that small bar frequented by gays provoked the first significant resistance to pervasive harassment of homosexuals. In short, the raids produced riots by hundreds of gays and their supporters. One history of the gay rights movement refers to those riots as “The Big Bang,” and has called the incident “the start of a movement to decriminalize, demedicalize, and devillainize us.”

Never before has a president given to that incident the historic rank that President Obama has just assigned it. He linked it directly to two other resistance events that marked historic turning points for other equality movements–for women, and for racial minorities.

The president referred to Seneca Falls and that, of course, was a recollection of the first women’s rights convention in U.S. history, the gathering at the Wesleyan Chapel in Seneca Falls, New York, on July 19 and 20, 1848. On July 19, Elizabeth Cady Stanton read a declaration of women’s grievances, patterned closely after the Declaration of Independence.

The president also mentioned Selma, a reminder of state troopers’ assault in March 1965 on demonstrators who had assembled on the Edmund Pettus Bridge in that Alabama city, as part of ongoing protests of the denial of voting rights to blacks. The Selma attack led to a mass march lasting five days, over the 54 miles from Selma to the state capital of Montgomery, to continue the protests. The March was led, of course, by the Reverend Martin Luther King, Jr., whose memory the president and the nation saluted on Monday.

When Seneca Falls occurred, there was no mention of women’s rights in the Constitution. That would not occur for another 72 years, when the 19th Amendment was added to give women the right to vote. It would be another 51 years before the Supreme Court would begin to locate some notion of constitutional equality for women in experiences other than voting. Seneca Falls, though, would remain the rallying incident for women for all of those years of waiting.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The Selma march had more immediate results, partly because the Constitution did, after all, provides some guarantees of racial equality in the 13th, 14th, and 15th Amendments.  But before Selma, there was no political will for Congress to give those guarantees meaningful expression in federal laws.

By the time President Obama mentioned the Stonewall riots, some 46 years had passed, and America’s attitude about gay rights had only lately begun to change toward wider acceptance, even though gay rights do not yet have constitutional statute.

It obviously was the president’s intention to assist, and perhaps even to accelerate, the country’s apparent change of mind. He not only mentioned Stonewall in his address, but also declared that “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law–for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

That comment might be seen as simply another way for the president to demonstrate that he now favors same-sex marriage. But, when the comment followed the reference to Stonewall, the words “treated like anyone else under the law” had broader, and potentially even constitutional, significance.

A president, alone, cannot guarantee constitutional equality to anyone. But he no doubt had concluded that he can try to help the country along on “the journey” he seeks to travel. “You and I, as citizens, have the power to set this country’s course,” he said, in a confident summons to citizen engagement.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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