Bizarro Section 1982 and “civil union” — a thought experiment in unequal names
posted by Marc Poirier
Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”
This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality. We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names. The confusion would be increased if different states chose different new for the new institution parallel to property. (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately. The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites. (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved. (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.
An unlikely scenario? This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court. I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief. The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.
April 30, 2010 at 4:14 pm
Tags: civil union, discrimination, domestic partnership, marriage, property
Posted in: Civil Rights, Family Law
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You’ve lost that Loving feeling
posted by Kaimipono D. Wenger
An incredible story in today’s news:
A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.
“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”
Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.
It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.
October 15, 2009 at 3:54 pm
Tags: Civil Rights, Loving v. Virginia, marriage, Race
Posted in: Civil Rights, Constitutional Law, Family Law
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