Rising Road

A True Tale of Love, Race and Religion in America

By Sharon Davies

[Available Here]

Rising Road is one of those books that happened by accident; a chance occurrence on the way to somewhere else.

After the outcome of the election in 2004, when the country was abuzz with reports of how the question of gay marriage drove President George W. Bush's supporters from their homes to the voting booths, I began to think about law and marriage, and the way of constitutional change.

It was a topic of great personal importance to me, law and marriage. Had my parents been swayed by the marriage laws that were still in place in various states at the time of my birth, I would never have been born. Neither would any of my five brothers or sisters. It was the era of the anti-miscegenation laws. The simple act of having us was a crime, a number of states declared, and they backed the ban up with the criminal sanction. Defiant mixed race couples could be jailed.

I was nearly seven-years-old by the time the U.S. Supreme Court finally got around to striking those laws down. Seems my siblings and I weren't crimes after all. It was the law that was wrong, the Court announced in Loving v. Virginia in 1967. The decision was unanimous. Even Justice Hugo Black agreed, though a son of the South, the region of the country most steadfastly devoted to the anti-miscegenation regime.

After the election in 2004, I wondered how constitutional change like that came about-how acts of intimacy, and marriage, and the wee beings that can result from them, could one day be outlawed, and another day not. I will write an article about that, I thought to myself, and set to work.

When doing the researching for that intended article, however, the unexpected happened. I tripped over a reference to a 1921 trial in Birmingham, Alabama. A murder trial, where the marriage of the daughter of a Methodist minister to a Catholic migrant from Puerto Rico, led the minister to kill the Catholic priest who took their vows. How horrible, I thought. I'll use it as an example in my article.

But when I actually found the transcript of that trial, the awful, revealing story underlying the minister's crime subsumed me-just as the crime had subsumed the nation back in 1921-and my plans changed. This is no law journal article, I thought to myself. This is a book. After three years of research and two more of writing, I delivered the manuscript for Rising Road to my editor at Oxford University Press.

The nonfiction book, written as a narrative, begins with the decision of Ruth Stephenson, age 18, to marry Pedro Gussman, a wallpaper hanger, against the wishes of her parents, Rev. Edwin R. and Mary Stephenson. Alabama law permitted the union, even if Ruth's parents objected; only marriages between whites and blacks were banned. So Ruth and Pedro had no trouble obtaining the marriage license they needed to be wed. But as the tale in Rising Road reveals, "unwritten laws" have been known to shadow those printed in a state's criminal code, and sometimes even outstrip them.

When Rev. Stephenson learned about his daughter's marriage, he shot and killed the priest who married them, Father James E. Coyle, the presiding pastor of St. Paul's Catholic Church. There never was a dispute about the identity of Fr. Coyle's killer-a number of witnesses heard the shots and saw Stephenson step down from the rectory porch where his victim lay bleeding, and Stephenson immediately surrendered and confessed-the only question was whether the minister would be punished for it.

In 1921, the question was more complicated than it should have been. Rev. Stephenson was a member of the resurrected Ku Klux Klan, sometimes known as the "second Klan," an organization that had successfully rebranded itself as a "patriotic" fraternity dedicated to defending the nation against the forces that threatened to engulf it: Blacks, Catholics, Jews and waves of other immigrants flooding into the country with only the slimmest desire to assimilate, Klansmen raged. The rallying cries worked; the Klan packed its rosters during this period with "the best men in town"-doctors, lawyers, judges, law enforcement officers, and men of the Protestant clergy like Stephenson.

After the shooting, the Klan circled the wagons around the jailed minister, holding drives across the state to raise funds for Stephenson's defense, and hiring a talented young lawyer to lead it, Hugo Black. I will not spoil the story for those who care to read the book. Suffice it to say that the pursuit of justice would not be easy, and the lawyer who would one day play a part in striking down the anti-miscegenation laws in 1967, would not hesitate to exploit the impulses that animated them in 1921 while defending the killer of an unarmed priest. It would take some time for Hugo Black, and the nation, to travel along that road to somewhere else.

Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom
is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes: 

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans. 

More recently, Klarman notes, the Court ruled that a disparate impact was insufficient to demonstrate a violation of the Equal Protection Clause; a majority applied strict scrutiny and struck down race-based affirmative action policies; rejected an equal protection challenge to the racially imbalanced application of the death penalty; and outlawed efforts to improve or preserve school desegregation.

"In sum, while the last forty years of conservative hegemony on the Court has yielded racially regressive results pretty much across the board, one should not absolve the larger society that the Court serves of responsibility for such outcomes," Klarman concludes. "The Supreme Court mirrors society at least as much as it shapes it. The conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence."

[Image via Nebraska Wesleyan University.]

Fifty years ago today, four black college students undertook a simple act of protest that helped accelerate the civil rights movement and changed history forever. Franklin McCain, Ezell Blair Jr., David Richmond, and Joe McNeil entered the F.W. Woolworth's store in Greensboro, N.C., took their seats at the whites-only lunch counter, and asked for coffee and doughnuts. The waitress refused to serve them, but rather than leave the store, the four students remained at the counter in silent protest of the segregation at that store in Greensboro and at lunch counters across the South.

While the Greensboro Four did not pioneer sit-ins, their act of defiance attracted the attention of other students and catalyzed a movement that made national headlines. Their protest reignited forward progress in the Civil Rights Movement at a time when the Movement arguably was lagging. In 1954 for instance, Brown v. Board of Education paved the way for integrated public schools, but desegregation was only occurring at one percent per year; change was long overdue. The success of the sit-ins resulted in many businesses desegregating, which instilled a newfound sense of hope in the movement, and much needed encouragement that segregation would soon be a practice of the past.

Following the Woolworth's protest, black students across the South began to participate in sit-ins at restaurants, swim-ins at pools, read-ins at libraries, and a host of other protests against segregation. Within a year of the Greensboro Four's protest approximately 50,000 individuals took part in sit-ins in more than 100 cities. The wave of protests dealt a significant economic blow to businesses in the south. It was estimated that Woolworth's alone lost $200,000 in business in the months following the Greensboro protest. It was a strategy similar to that used by blacks in Montgomery during the bus boycotts; leverage the economy to disrupt segregationists even as the lingering manifestations of Jim Crow left many blacks in the south with few resources to combat systemic racial injustices.

It worked. Business began to desegregate, Freedom Riders launched a successful, albeit at times bloody, challenge to segregation on interstate busses, Martin Luther King, Jr. led the March on Washington, and just four years after the Greensboro Four left their indelible mark on the Civil Rights Movement, the Civil Rights Act of 1964 outlawed segregation and discrimination in public venues. A heroic act of defiance redefined history of justice and equality.

Former U.S. Senator from Maryland Charles ‘Mac' Mathias Jr., died Monday of complications from Parkinson's disease. Mathias, a moderate Republican who "clashed with the Nixon and Reagan administrations," was called by his colleagues "the conscience of the Senate," The New York Times reported. Both The Times and The Washington Post noted his leading efforts to advance civil rights. Mathias, who also served on the ACS Board of Advisors, "played a major role in drafting the 1964 Civil Rights Act," and "was a key supporter of later measures on voting and housing and of efforts to thwart Reagan administration efforts to roll back those victories," The Times noted.

Mathias served in both chambers of Congress and in the Maryland House of Delegates, where he voted in favor of Maryland ratifying the 14th Amendment to the Constitution. The Post reported that during his eight years in the U.S. House of Representatives, Mathias "established a reputation as a leading figure in the small but effective band of moderate Republicans who worked with Democrats to forge measures ending discrimination in housing, improving welfare, making the C&O Canal into a national park, promoting civil rights and championing home rule and full congressional representation for the District of Columbia." The newspaper also noted that Mathias "expanded his list of legislative concerns, pressing for campaign finance controls ...."

In a press statement, U.S. Rep. Chris Van Hollen (D-Md.), who once worked for Mathias, said, "He was an early champion of civil rights, a dedicated and respected advocate for the North Atlantic Alliance ...." Rep. Van Hollen concluded that Mathias "will be deeply missed, but his legacy is all around us in the more perfect union that he helped build, the shared values of democracy and the rule of law he helped strengthen, and the natural heritage of Maryland that he helped preserve."

The American Constitution Society notes with sadness his passing. 

Memories of Dr. Martin Luther King, Jr. were recalled by former ACS Board of Directors member Roger Wilkins and Pulitzer Prize winning historian Taylor Branch at a 2006 ACS event dedicated to Dr. King. Wilkins spoke about King's efforts to convert Chicago gang members to non-violence, while Branch spoke of King's dedication to causes far broader than desegregation -- his passion for ending the "triple associated scourges of poverty, racism and war."  Video is available at this link.

Watch Dr. King's "I Have A Dream" speech below.

With only two days left in office, Governor Tim Kaine has the power to rid Virginia of its last official vestige of Jim Crow and join the 48 other states that restore (or never remove) voting rights for persons with felony convictions. So now is the time for you to tell Governor Kaine to do the right thing.

Approximately 300,000 Virginians with felony convictions who are no longer in prison and are not on probation or parole are barred from voting for life. Kentucky is the only other state with such a punitive disfranchisement policy; all other states have realized that prohibiting so many people from voting is unjust and counterproductive.

Under the Virginia Constitution, an individual's right to vote must be restored by an executive act of the Governor. Currently those seeking to have their rights restored must apply to the Governor's office, but the application process is both daunting and subjective -- the Governor has the authority to reject any application regardless of how spotless the applicant's post-conviction record may be. We recently learned, for example, that the Governor has an unwritten policy of turning down applicants solely because they have speeding tickets.

When he leaves office this Saturday, Governor Kaine will have restored voting rights for about 4,500 individuals -- a mere drop or two in Virginia's bucket of 300,000 disfranchised persons.

Virginia's disfranchisement law is a hold-over from the Jim Crow era. Indeed, at the 1901-02 Virginia Constitutional Convention, where felony disfranchisement, poll taxes, literacy tests and appointed school boards were either perpetuated or established, one delegate explained: "This plan will eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county ... will there be the least concern felt for the complete supremacy of the white race in the affairs of government."

The remnants of this racially-tinged policy are still clear today. While 6.8 percent of Virginia's voting age population as a whole is disfranchised, 19.8 percent of the state's African-American voting age population -- approximately 200,000 individuals -- is barred from voting.

Restoring the right to vote after full completion of sentence is the fair, just and American thing to do. Almost certainly, the vast majority of formerly incarcerated individuals in Virginia are tax-paying members of their communities who have jobs and raise families. Yet, they can't vote.

Restoring voting rights is also the pragmatic thing to do. Studies indicate that individuals with criminal convictions who vote are half as likely to be re-arrested as those who don't. Is there anyone who is opposed to lowering the crime rate?

The question of the governor's authority to issue a blanket executive order restoring the voting rights to all or some categories of individuals with criminal convictions has been raised and definitively answered in the affirmative. Under Article V, Section 12 of the Virginia Constitution, the governor's executive clemency powers include the authority to remit fines and penalties, to grant pardons, to remove political disabilities that result from a conviction (such as voting rights), and to commute capital punishment

When the governor exercises executive clemency, the same article requires him to communicate "the particulars of every case" to the General Assembly, but only when remitting fines and penalties, granting pardons and commuting capital punishment. The removal of political disabilities is not listed among the clemency actions that must be submitted one at a time to the General Assembly. This is a plain reading of the Virginia Constitution that requires no historical or legal interpretation.

A broad alliance of Virginia's civil rights and faith-based groups -- including the NAACP, the League of Women Voters, the Catholic Conference, the ACLU, and the conservative Rutherford Institute -- has been in meetings with the Governor and his staff over the last month to discuss issuing an executive order to automatically restore voting rights for most or all of Virginia's formerly incarcerated. Based on the time the Governor has devoted to this issue, it is clear that he understands its importance. But so far he is only saying he is considering the matter.

With only two days left in office the time for consideration has passed and the time for action must begin. Governor Kaine can and must join the ranks of former Iowa Governor Tom Vilsack and Florida Governor Charlie Crist by using his executive power to expand democracy in Virginia. With the stroke of a pen, he can restore voting rights to all Virginians who have finished their sentence, and can put in place a process for automatically restoring rights to others who complete their sentence in the future. Please contact Governor Kaine and urge him to act now!

The Justice Department's Civil Rights Division is once again "open for business," according to the division's new chief, Thomas Perez, in remarks to ACS members and covered live by C-SPAN.

"In the first 60 days that I've been on the job, we have already done as much hate crimes activity as was done in the entire fiscal year of 2006. And by the way, that was a leap year. And we've done as much as was done in fiscal year 2007," Perez told an ACS audience at the National Press Club, in a YouTube clip now available here. "Don't listen to my words, look at our actions."

Perez's commitment to restoring the division follows years of limited enforcement, decreased hiring of racial minorities, and a working environment that led African-Americans to be 50 percent more likely to quit or resign than were white employees. Under President George W. Bush, a scandal also arose around politicization in the division's case-selection and Justice Department hiring. "We will make sure that this chapter of our history is the best one yet," Perez declared in his conclusion, posted to YouTube courtesy of MainJustice.

Assistant Attorney General Thomas Perez gave a "60-day progress report" to a gathering at the National Press Club hosted by ACS, saying that while strides have been made in advancing civil rights, much work remained to be done. In particular, Perez said that the Division needs to be rejuvenated and refocused, to protect and advance civil liberties.

"It feels right to me that I should be giving my 60-day progress report to you, the American Constitution Society," Perez said. "When I consider ACS's own description of its mission - namely, to promote the values underlying our Constitution, including individual rights and liberties, and to being a force for improving the lives of all people, I realize how your mission and ours share a lot in common." Watch C-SPAN coverage of Perez's entire speech (right). A transcript of his remarks is here.

Perez said that in two short months on the job he has learned that too many people are under the notion that a Civil Rights Division may no longer be needed. But while, there has been some progress in the area of civil rights, those advancements should not be cited as proof that all is well for the nation's minorities. Indeed, Perez ticked off a number of stories that one would think could not be a part of the nation's landscape in the 21st century.

Perez said:

While last year's historic election marked a triumphant moment in our nation's long, complex and often painful history of civil rights, it was not the culmination of our journey, but rather an important mile marker along the way. I would ask those who believe we have reached the ideal of a post-racial society to consider this: On the night that Americans elected Barack Obama our nation's first African American president, three men on Staten Island reacted to the news by going out into their community to find African-Americans to assault in retaliation. Or consider that while we have a Latina Supreme Court Justice, the first press release we issued during my tenure announced a guilty plea from a Louisiana man who could not stand to have three Hispanics living across the street, and so he drove them from their home with gunshots and then burned it to the ground.

Enforcing hate crimes law and supporting the passage of the Employment Non-Discrimination Act (ENDA), which would bar workplace discrimination against people based on their sexual orientation or gender identity, would also be a high priority of this Civil Rights Division, Perez stressed.

The assistant attorney general addressed the well-documented politicization of the Civil Rights Division during the Bush administration. A Department of Justice inspector general report concluded that from 2003 to 2007, Bush political appointees blocked applicants with progressive affiliations from career jobs and promotions. An Obama transition team report, covered by The New York Times, found that during that time period, 236 civil rights lawyers left the Division.

"For eight years," Perez said, "the career staff was in most instances frozen out of the hiring process for career staff. Section chiefs were sometimes simply notified that a new lawyer or set of lawyers would be starting in their office the following week. Perhaps the most distressing fact of all is that 70 percent of the career attorneys working in the Civil Rights Division in 2003 had left by 2007."

Perez concluded, in part, "We will restore and transform the Division because there is no other option. That is the charge I have received from the President and from Attorney General Holder, who describes himself as an impatient Attorney General."

Two recent Supreme Court decisions are shuttering courthouse doors to would-be plaintiffs, according to some lawmakers. At yesterday's hearing before the House Judiciary Committee, legislators questioned witnesses about the effects of Bell Atlantic v. Twombly and Ashcroft v. Iqbal, and pondered appropriate legislative responses.

Daphne Eviatar reports, at The Washington Independent: 

House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court's recent decisions ... have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Rep. Jerrold Nadler (D-N.Y.), who testified at Wednesday's hearing, has introduced legislation to effectively turn back the clock to before the Supreme Court's rulings by restoring the previous standard for filing claims.That legislation, HR 4115, the Open Access to Courts Act, was the focus of the hearing.

Two upcoming, star-studded ACS events address the topics raised in yesterday's hearing.

• Fri. December 18, 2009 (tomorrow!): At the National Press Club in Washington, D.C., Thomas Perez, chief of the Justice Department's Civil Rights Division, will give an address in the wake of a General Accountability Office finding that civil rights went largely unenforced during the Bush administration. Click here for details, or to RSVP.
• Thur. January 21, 2010: Top experts examine Twombly, Iqbal, class action requirements and other procedural barriers to courts in two panels moderated by Professor Arthur R. Miller at New York University School of Law in New York City. The panels will follow a keynote address by Anthony Romero, executive director of the American Civil Liberties Union. Click here for more.

[Image via ajpresto714.]

Seven months ago, the United States issued a list of human rights commitments and pledges in support of U.S. candidacy for membership in the U.N. Human Rights Council. The decision to join the Human Rights Council was the right thing to do. It was as an important step in breaking with the Bush administration's unilateral and disastrous policies on human rights. While we welcomed this move, we noted that the Obama administration had "missed an opportunity to detail exactly how it will reaffirm its commitment to ending human rights violations at home beyond vague rhetoric." We warned the Obama administration to "move beyond ambiguous commitments which are similar to the ones heard from the Bush administration over the past eight years."

There is no question that this administration is currently facing multiple and daunting challenges, including the wars in Iraq and Afghanistan and the safe closing of Guantánamo, the economic crisis and rising unemployment, health care, energy reform and much more. However, nearly a year after Obama's inauguration, the administration has yet to announce any major domestic human rights initiative, outline a detailed plan to honor and expand our existing human rights commitments and translate them into domestic policy, or incorporate them into the daily working of the U.S. government.

Tomorrow, the president will accept the Nobel Peace Prize. The prize is traditionally given out on Human Rights Day, which marks the 61st anniversary of the Universal Declaration of Human Rights. Former first lady Eleanor Roosevelt, who led the U.S. delegation to the U.N. Commission on Human Rights in the 1940s, called this landmark document "the Magna Carta for humanity."

We have seen this administration take bold steps in the early days of Obama's presidency when three executive orders were signed pledging to close Guantánamo within one year, end CIA secret detentions overseas and reaffirming the absolute prohibition against torture. Furthermore, the administration has also committed to advancing civil rights and promoting equal opportunity. We all remember the presidential speech on civil rights delivered at the NAACP annual meeting, and the administration's strong support for legislation like the Lilly Ledbetter Fair Pay Act and the Employment Non-Discrimination Act, which the administration supported in testimony before Congress (PDF). The president has committed to advance women's rights by issuing an executive order establishing the White House Council on Women and Girls and prioritizing a critical women's rights treaty for ratification. The administration's commitment to persons with disabilities has been made clear in the signing of the Convention on the Rights of Persons with Disabilities and the White House's celebration of the 20th anniversary of the Americans with Disabilities Act.

However, there has been much debate and criticism about decisions the Obama administration has made in the subsequent months on a number of important issues. The administration has been reluctant to fully investigate acts of torture committed by the Bush administration and end the practice of extraordinary rendition. The practice of invoking the state secret privilege to block accountability continues, and the discredited military commissions in Guantánamo Bay have been revived. There has also been no announcement of a significant action or initiative to fully honor our human rights commitments and treaty obligations and fully incorporate them into national security policies including the treatment, detention, trial and repatriation of detainees in U.S. custody overseas notwithstanding the announcement in September of the detention and prison reforms in Afghanistan.

Therefore, we must continue to make the case for human rights here at home by supporting the goals of the Campaign for a New Domestic Human Rights Agenda - a broad coalition of approximately 50 U.S.-based human and civil rights, civil liberties and social justice organizations tasked with finding the best fusion between civil rights and human rights. Key objectives of the campaign include:

• A new, enhanced executive order revitalizing the Interagency Working Group on Human Rights to coordinate the efforts of federal agencies and departments to respect and implement human rights obligations as U.S. domestic policy;
• Transforming the U.S. Commission on Civil Rights into a U.S. Commission on Civil and Human Rights;
• Monitoring government compliance with the Convention on the Elimination of All Forms of Racial Discrimination which the U.S. ratified in 1994; and,
• Strengthening federal, state, and local government coordination to support human rights.

On Human Rights Day 11 years ago, President Clinton issued an executive order creating an Interagency Working Group on Human Rights, which was subsequently disbanded during the Bush administration. The ACLU reiterates its call for the resurrection of a more effective Interagency Working Group on Human Rights to coordinate and promote human rights within domestic policy, and for the implementation and enforcement of ratified human rights treaties and essentially bridging the often artificial gaps between civil rights and human rights.

Further, President Obama must make it clear that human dignity is of paramount importance, and that accountability for human rights is a U.S. national interest. The administration must seize the opportunity to uphold core American values of fairness and justice for all by building a much-needed human rights infrastructure here at home.

While presidential speeches, like the one expected in Norway tomorrow, are important to rally public support for human rights, what is needed is unequivocal and concrete action to honor human rights commitments at home. Too many people have suffered as the United States' human rights record crumbled under the Bush administration. The time is for action is now.

[This was initially published at Huffington Post. Image via United Nations Photo.]