Researching Public Law and Public Policy in the Public Interest

For America, real progress achieved nearly by accident

A couple carry an American flag and a rainbow flag during the annual Gay Pride parade in New York June 28, 2015. REUTERS/Eduardo Munoz

Originally published by REUTERS

It is tempting to look for signs of America’s direction in the late June ritual of reading the U.S. Supreme Court’s most momentous decisions of the term. Last week’s rulings in support of marriage equality, fair housing and Obamacare would suggest that on fundamental issues of daily life — the equal status of all love, the idea of housing as a link to life chances and the opening of access to healthcare for millions — the United States just took a giant step toward updating the constitutional principle of liberty with dignity.

What occurred, however, was more accident than deliberate progress. The court did not (thank goodness) consider police brutality, income inequality, climate change, immigration, gun control or any of the other vexing systemic issues that test our sense of progress. We only just finished burying the casualties of hatred in Charleston, South Carolina. Many Americans are still discovering that Black Lives Matter.

Gay rights supporters celebrate outside the U.S. Supreme Court building in Washington

Gay rights supporters celebrate after the U.S. Supreme Court ruled that the Constitution provides same-sex couples the right to marry, outside the Supreme Court building in Washington, June 26, 2015. REUTERS/Jim Bourg

But we should still pause to savor what the decisions say about us. We’d be a different country if each had gone the other way. Instead, the three rulings advance the idea that we should strive constitutionally for others’ opportunity. Even more, they remind us personally that we should root for others’ success. Starting with love and ending with hate, we have cause to celebrate.

The landmark, by far, isObergefell v. Hodgesbecause it finally makes marriage on equal terms an unconditional right. Justice Anthony Kennedy’s opinion for a five-member majority soars at times, recounting a history of the institution that never in all its understandings affirmed the dignity of homosexual love. This changed emphatically last week when he found a fundamental right to marry never to be conditioned on sexual identity again.

I was reminded of a couplet by the poet June Jordan in a poem titled Update:

Still I am learning unconditional and true

Still I am burning unconditional for you.

Like Kennedy’s opinion, Jordan’s words recall a journey through a personal truth denied, one that the Obergefell plaintiffs and millions behind them experienced as they discovered the truth in themselves, asserted that truth in their love — yet were rebuffed by the state in the provision of all the benefits that ordinarily flow as of right to perfected unions. Last week, both the truth and the unions became unconditional.

The images from Gay Pride parades over the weekend were sublime. To see freedom dawn on the faces of the unfree is to discover it in oneself.

If marriage is the formal success of love, fair housing is the formal success of shelter. But unlike marriage, shelter is not yet a right in the United States. This did not change in the Supreme Court’s opinion affirming the disparate-impact standard in the Fair Housing Act. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project was more like a dodged bullet than a landmark decision. But it, too, gave constitutional support to the ideal of inclusion.


Martin Luther King Jr. (C) leads other civil rights leaders and marchers during the March on Washington for Jobs and Freedom, August 28, 1963. REUTERS/Rowland Scherman/U.S. National Archives

The case looked at whether a state agency’s practice of compounding segregated housing patterns was a violation of the Fair Housing Act. The only way to prove it was to show that the policy had a “disparate impact” on racial and ethnic minorities protected by the act.

Nothing denies opportunity in the United States like segregation, past and present. The Fair Housing Act recognized this from its 1968 birth amid the flames following Martin Luther King Jr.’s assassination. These were never easy cases to bring, which is one reason why segregation persists more than 60 years after it was constitutionally banned. The cause is race-neutral policies that somehow manage to produce the same racially segregated effects. After years of primarily using the act to root out direct discrimination in the sale or provision of housing, advocates have tried to challenge government policies that fail to promote integration.

This, according to court watchers, is why the justices agreed to hear a disparate- impact case at all. Even though that standard has held without conflict for 40 years, many believed the court took this case to gut the standard.

Again, Kennedy provided the swing vote and wrote the opinion. It is remarkable in its respect for the obvious. The same conditions described by the Kerner Commission report — the investigation into the 1967 riots that roiled the nation — that gave rise to the act still divide Americans from opportunity today. Kennedy used language no justice had ever used before. He acknowledged the role of “unconscious prejudices” and “disguised animus” in some housing practices.



Two generations later, we can celebrate the fact that five justices on the Supreme Court recognize what decades of research clearly demonstrates: Where we live — the access to strong schools, safe streets, employment centers, transportation and adequate infrastructure — determines a great deal about the opportunities we enjoy in life. Housing matters.

If opportunity is the success we gain from fair housing, good health is the success we get from healthcare access. The court’s decision upholding the Obama administration’s interpretation of the Affordable Care Act is also momentous for the harm it avoided. This case is not sexy. It is rather a matter of statutory interpretation beloved only by lawyers. But the result is not just a victory for the president’s legacy. It opens the way to basic healthcare access for millions of Americans.

Now the nation can get on with improving Obamacare for the millions more still uncovered.

If we have reached a landmark in the direction of the nation by these decisions, it is that we have managed to reach the intersection of love, marriage, home and health and affirm inclusion each time. Though change may often seem too incremental, we should probably expect to reduce marginalization at the margins.


A capacity crowd fills the pews during a prayer service for the Emanuel AME shooting victims held at the Morris Brown AME Church in Charleston, South Carolina, June 18, 2015. REUTERS/Randall Hill

Yet gauging a nation’s progress — perhaps a fool’s errand — depends on where you are. If you are the families of the nine black Christians massacred during Bible study in the Emanuel African Methodist Episcopal Church by a white racist jihadist in Charleston, the nation’s problem with hatred remains as serious as ever. Celebration — except for the beautiful lives cut short — is out of the question.

Even here we find hope for a more perfect union, however. Facing the accused murderer, most of these grieving families tearfully offered forgiveness to the avowed white supremacist who had taken their fathers, mothers, grandmothers and grandfathers. I don’t know why, but I suspect that they were refusing to let the Bible study end on the killer’s terms, that they were reclaiming their church sanctuary, that they were asserting unconditional love as a way of life. Still, we are all learning unconditional and true.

We may not get the gun control we deserve yet. But we have seen Confederate flags budge from their prominent perches across several Southern statehouses and come down. It may only be symbolic, but hate has bowed to inclusion. That provides a little more room in which to celebrate each other’s successes.