The nature of injustice is that we may not always see it in our own times.
– Justice Anthony M. Kennedy
In his dissent in Obergefell v. Hodges, the landmark decision that struck down bans on same-sex marriage throughout the fifty states, Chief Justice John Roberts asked:
As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
In all honesty, I’m not always sure who we are as a nation, but I think I can say with some confidence who we are not:
We are not Han Chinese, or Kalahari Bushmen, or the Carthaginians. And, unless at some point we’ve performed a ritual human sacrifice on the White House lawn, we are definitely not the Aztecs. I’d like to think we’ve made just a little progress since then. Even if one rejects the idea of biological evolution, no one who’s read a history book (outside of Texas) can possibly deny the reality of social evolution. We are not who we once were. And this is a great good.
We are not even the nation we were a week and a half ago. As President Obama so eloquently noted in his eulogy for Clementa Pinckney, the events that unfolded in Charleston have had an effect on us as a people that no one, from the shooter to the Fox pundits to society at large, saw coming: we have stumbled upon (or been thrust rudely into) introspection, a quality sorely lacking of late in our public discourse. We have perhaps for the first time in a very long time stopped to consider the feelings of others. When the son of Strom Thurmond advocates the demotion of the Confederate flag, you know a corner’s been turned.
In this groundswell of respect for others (fleeting as it may be), the Obergefell decision seems only fitting. Perhaps we are finally getting it through our collective head that our LGBTQ compatriots are not aberrations, not threats to the social order, not “less than” anything or anyone. That instead, they are just like us: people in pursuit of happiness, people in possession of human dignity, people entitled to all the rights and liberty the rest of us expect to wake up to in the morning. Perhaps we’ve finally realized that the worship of God doesn’t require judgment of others, or that these men and women simply want a share in our society, not to destroy it. Perhaps; perhaps not…
Here, though, is where the rubber meets the road. Neither the Emancipation Proclamation in 1863, or the Civil Rights Act a century later, signaled the end of the racist streak that runs throughout our history as a nation. Charleston proved that. Legislation and/or court decisions get us only so far. And they are what truly show us who we are as a society, because they take what once was adherence to the law (call it “plausible deniability”) and transform it into circumvention of the law. Alleged innocence flies out the window: we’ve now reached the stage of egregious (and generally creatively underhanded) denial of our fellow citizens’ rights.
Before June 26, 2015, we could say that our attitude, our approach to the issue of LGBT equality, was about “the letter of the law,” about what’s written down on the hallowed papers and documents of our land. We could blame the Founders, pin it on the courts, whatever. Now, today, that ship has sailed: now it’s all about what lives in our hearts and minds, as individuals, as citizens, as human beings. Nooses on trees come from nooses in minds; hateful speech flows from hateful hearts. Who do we think we are? We are what we say and do.
Justice Kennedy foresaw the coming storm in the majority opinion: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” Anyone familiar with Jim Crow feels the truth of those words, some of us in ways the rest of us will never quite understand. And the choice, now, is ours: who do we think we are?
If we take Justice Roberts’ words as binding, it would seem we are who we ever have been, that we cannot change, that we cannot grow as a people and a society. We must always think as we have thought before; we must always plumb the depths behind rather than plotting out the course ahead. And that’s a dangerous frame of mind: if we think we are who we used to be, we’ll never realize who we might become.
The real question, as we move forward, is this: Who are we going to be, now that we’re beginning to understand what it means to be who we are?