December 29, 2003

Can Bigots Pass Non-Bigoted Law?

This article at reviews the US 11th Circuit Appeals Court decision to permit a felon re-enfranchisement suit to proceed to trial. The District Court had granted summary judgment to the state of Florida. Key to the finding was racist commentary in the 1868 Florida Constitutional Convention.

The Court opined: "We conclude that an original discriminatory purpose behind Florida's felon disenfranchisement provision establishes an equal protection violation that persists with the provision unless it is subsequently reenacted on the basis of an independent, nondiscriminatory purpose,"

According to an Orlando Sentinel article, Florida revisited the issue and passed a similar voting ban in 1968. The District Court had granted summary judgment on the grounds that no evidence had been presented that the 1968 law (the one actually being challenged) had racist intent.

Now the likelihood of ultimate success of this class action suit is low but what's unsettling about the 2-1 majority opinion is that the logic would permit any law adopted during the time of widespread racism (which was never just in the South) to be challenged on these grounds. Trials are long, expensive, uncertain affairs. The 11th Circuit has just handed defense lawyers all across the country a tool for making them longer and more expensive.

It's also a decision that will likely bubble to the surface in odd ways. For instance, most state bans on money going to religious schools were passed in a fit of anti-catholic bigotry when public schools were dominated by Protestants. These "Blaine amendments", as they are known, are odious stains on US law that should be gotten rid of. But the logic of the decision would paint the ACLU, AFT, NEA, and a raft of modern liberal supporters as sectarian bigots. And much as I would like Blaine to be buried, spreading the charge of anti-Catholic bigotry around this widely isn't the way to do it.

HT to How Appealing

Posted by TMLutas at December 29, 2003 08:50 AM