“When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.” – Nelson Mandela
Right now our collective heads are spinning with the news of the last 72 hours: the Defense of Marriage Act is struck down the day after the Voting Rights Act is gutted; Thousands of miles away in South Africa, a legendary freedom fighter takes what could be his final breaths while the throngs hold vigil outside. It is no small thing to be alive at this time – to witness earthshaking events such as these.
What is so striking about this confluence of events is not just their synchronicity, but also their simultaneous and conflicting implications. They are not solely about issues or people or the courts or laws. They are, fundamentally, reflections of how we interpret the very concept of freedom.
DOMA, of course, was never about expanding anyone’s liberty or ability to pursue happiness. It was, from its conception, a shallow and transparent ploy to rally a particular segment of the electorate and to force uncomfortable votes from swing district legislators. The true believers who earnestly claimed they were “defending marriage” on religious grounds weren’t actually the instigators at all. Instead, those whose callous interest was in mobilizing voting blocks big enough to sustain their majorities were more than happy to speak of defending marriage as if it were synonymous with defending our borders from some hostile foreign threat. They successfully conflated the rhetoric of national patriotism with the language of personal liberty in order to hide their own hypocrisy and to justify a usually politically poisonous “intrusion into states’ rights.”
Which inevitably brings us to another monumental Supreme Court ruling from earlier this week in which the 5-4 majority effectively pulled the teeth right out of the Voting Rights Act of 1965 by allowing nine of the most egregious and chronic vote-suppressing states to change their election laws without federal approval. Justice Scalia, who issued a scathing dissent in today’s DOMA decision in which he hyperbolically seethed: “That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role” – was more than happy to use his “judicial supremacy” to negate decades of populist struggle for voting rights, invalidate historic enacting congressional votes, and erase President Johnson’s executive signature making the Voting Rights Act the law of the land. Is it states’ rights or federal dominion, Justice Scalia? Is it judicial supremacy or the power of the People’s Representatives in Congress? Is it participatory democracy or is it elitist tyranny?
In arguing over jurisdiction and positional power, Justice Scalia completely, and quite possibly intentionally, misses the point. The singular question to be answered in either case is “does it promote freedom, liberty, and happiness or doesn’t it?”
It’s a particularly poignant and timely question given that, while all of these missives are being launched back and forth over the ideological fence, one of the greatest champions for freedom the world has even know lies close to death in a hospital bed in Pretoria while the world collectively contemplates the magnitude of his passing. Though Nelson Mandela has dealt with his own significant political debates and disagreements about the machinery of social change, his understanding of what it means to be free – what it means to fight for freedom has never changed. Though his methods evolved dramatically from his time as a front line freedom fighter, to becoming a movement martyr locked away on Robben Island, to his triumphant return and rise to the South African presidency, his belief that the freedom to love, to participate, to determine the direction of one’s own life has never faltered. He remains, in what may well be his final hours or days, the embodiment of some of our greatest shared ideals.
While he makes his way, God willing, to a peaceful rest, some will rejoice that DOMA’s downfall will, at last, grant the freedom to fully pursue happiness for LGBT people in the United States while others will decry the likely discriminatory consequences of the Voting Rights Act’s repeal. Dissenters on both sides will continue to hurl angry diatribes at each other about power and authority, using these as catalysts for, or barriers to, change. But they will be missing the point, just as Justice Scalia continues to miss the point.
My hope is that maybe, just maybe, they will hear a voice whispering to them through the din and noise, quietly, urgently…
The voice of a weathered warrior departing for his next great struggle.
“Freedom”, he will whisper, “freedom.”