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‘Separate but equal’ returns to Tennessee with judges’ ruling against Jewish couple [1]
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Date: 2022-07-07
If you feel like you’ve heard this chestnut before, that’s because you have—in 19th century America. That’s when Supreme Court Justice Henry Billings Brown argued that having “separate but equal” accommodations for different races did not conflict with the 14th Amendment to the Constitution. Why? Because their legal equality was not impinged upon since there were other ways for Black Americans to receive services—just not the white services. In Plessy v. Ferguson, this made the point moot.
I guess these guys would be more in line with the “Christian values” Tennessee is willing to spend taxpayer money on?
The Tennessee court majority opinion, in this case Judges Roy B. Morgan Jr. and Carter S. Moore (with Chief Judge Ellen Hobbs Lyle dissenting), argue that because the Rutan-Rams were—after losing out on a foster child opportunity—finally able to foster a child, there was not enough “harm” done. They subsequently argue that just because the defendants were denied state-funded services because they were Jewish isn’t a sign of “stigmatic injury.” How? Because technically the law doesn’t consider Jewish people less than.
Cut to: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it … The argument also assumes that social prejudice may be overcome by legislation, and that equal rights cannot be secured except by an enforced commingling of the two races… If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”
Oops, sorry, that’s Plessy v. Ferguson from 1896. As the Tennessee court’s Lyle concluded in her dissenting opinion, “As to injury in fact and redressability, the law is that plaintiffs need not demonstrate that they would have been completely foreclosed from fostering/adoption―only that they cannot compete for the right to adopt on the same footing as everyone else.” Echoing Supreme Court Justice John Marshall Harlan’s dissent in Plessy, Lyle went on to explain that there is no excuse for interfering with the personal freedom of citizens. “Demonstrating injury in fact does not require an allegation of exclusion entirely from participation in the state foster care program or even by a majority. Allegations of practical barriers to a plaintiff’s participation in the state foster care program that make it more difficult for members of one group to obtain a benefit than it is for members of another group are sufficient to establish standing.”
Americans United For Separation of Church and State, who represented the Rutan-Rams, say they plan to appeal this dismissal.
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