To consider the ideal of equality in the story of the United States, there is a certain beauty and simplicity in beginning with the Declaration of Independence, which affirms inalienable human rights and equality of all people. As noted previously, this document is not legally binding, but serves as an ideal toward which we strive, recognizing that our start on the journey as a country was immeasurably far from the ideal.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.
From a broader, international perspective, consider The
Universal Declaration of Human Rights which includes among its
affirmations Article I which reads “All human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”[1]
The larger arc of this story is that the
Constitution originally established and protected the rights of the male ruling
class of property owners, very far from the ideal of the equality of all
persons. Slowly, gradually, and with much pain and toil, the law of the land is
has undergone many changes to evolve toward the ideal of equality. Many
interpreters and admirers of the Constitution have marveled at its apparent
capacity to stand as a basis for this development. In that journey the first
major step would be the “Bill of Rights,” the first ten amendments to the
constitution which were passed and ultimately ratified by the requisite number
of states in 1791. These amendments address and protect, in brief, (1) freedoms
of religion, speech, press, assembly, (2) the right to bear arms, (3)
quartering of troops (4) unlawful search and seizure, (5) self-incrimination
and guarantee of judicial due process, (6) the right to trial by jury, (7)
guidelines for civil suits, (8) protection from excessive bail and cruel and
unusual punishment, and (10) states’ rights. It is important not to overlook
Amendment (9), which states … “The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.” This provision is generally interpreted to provide for the reality of
rights not yet specified so as to make it clear that the constitution nor the
amendments limit the scope of human rights under the law.
In U.S.
race history, more than any other area, the ideals of freedom and equality have
been contradicted by the surrounding historical realities of the slave trade,
slave labor, slave morality, and the legal system of humans as the property of
other humans. This moral myopia is characteristic of many chapters of our
American history. In retrospect we can recognize the profundity of “all men are created equal.” Was this a stroke of genius? …an act of
God? However, the truth is that when
written, those who affirmed it could barely begin to comprehend and apply its
application. I hold that we all stand to learn from our mistakes so as thereby
to strive for our better selves, individually and collectively.
Slavery and Equality
The very existence of slavery anywhere that it has
existed screams inequality at a most fundamental level. However, this gigantic
blind spot was reality for the first 90 years of the existence of the United
States (and many years before 1776). The abolitionist movement against slavery
was infused with many different ideals not all consistent, and not all based on
equality. Anti-slavery sentiments were mingled with doctrines of racial
superiority, segregation, and African colonization, for example. Some abolitionists,
foremost including William Lloyd Garrison and Frederick Douglass, boldly took a
stand to promote a moral and spiritual message of immediate abolition and the
potential unity of black and white American citizens in the spirit of the
Declaration of Independence. This stream of the movement was consistent in
rejecting segregation or removal by colonization as inconsistent with the
inherent and inalienable rights and equality of all men.[2]
Rights and Equality
After the Civil War
15th
amendment prohibited denial of the vote on the basis of race or former slave
status. Initially former slaves and former free blacks became very active in
the political process, even taking a majority or near majority in several
southern states. White supremacy interests quickly and effectively rolled back
these voting privileges and political participation, by enacting various
literacy tests, history tests, religious tests, and poll taxes that were
implemented under the absolute authority of local election registrars who had
no intention of allowing black suffrage. Beyond the electoral and political
sphere, Jim Crow laws stripped away any semblance of equal rights and
privileges for black citizens across the board. This system became pervasive
throughout the former slave states and remained deeply entrenched until the
Civil Rights movement beginning in the middle of the 1950s. Thus, citizenship
participation equality gained in principle in 1865 was not enjoyed to any
significant extent for many decades after the abolition of slavery.
Almost
100 years passed before the persistent fight for civil rights for black
Americans began to bear fruit through determined litigation in the court
system. A significant milestone in this fight was the Supreme Court case of
Brown v. Board of Education in 1954 which found state sanctioned racial
segregation of schools to be unconstitutional. In dramatic fashion, the civil
rights movement gained momentum for the next decade leading to the Civil Rights
Act of 1964 and the Voting Rights Act of 1965 (which has recently been
significantly rolled back). This legislation, along with the 1965 Immigration
and Naturalization Act, marked a significant legal change in federal law to
turn from an entire century of race based inequity, oppression, and a plethora
of creatively constructed barriers preventing minority citizens access to
tangible resources.
By no means can we conclude that these changes in
federal law have addressed or provided remedy to the previous 350 years of
racial inequity that pervaded every aspect of law and society. Discussion of
this important and relevant issue is beyond the scope of the present volume.[3]
But the legal history of the expansion of legal rights for black Americans is
illustrative of the gradual process of change that we have witnessed in the
moral progress represented by expanding equality under the law.
A similar path of moral development reflected in
legislation passed to address historical injustice and inequity can be observed
with other people groups represented in our society. The
ideal of equality is severely challenged by our treatment of the original native
inhabitants of the expanding United States. A multitude of agreements and
treaties that governed this relationship for the first century of our nation’s
history were wiped out in the systematic removal of virtually all Native
Americans to reservations in the west in the 1830s and 1840s. Significant
congressional attention to these injustices is represented in legislation
beginning in the 1930s such as the Indian Reorganization Act, the Indian Civil
Rights Act, the Indian Self-Determination and Education Assistance Act, and the
Indian Child Welfare Act, addressing the historical practice of removing Native
American children from their communities and placing them in non-Indian homes.[4]
From the founding of our nation, immigration was
allowed and encouraged, but naturalization was restricted to free whites until
after the Civil War. The 14th Amendments not only extended citizenship to
former slaves, but to all persons born or naturalized in the United States,
irrespective of the nationality of their parents. Further codification of
immigration policy after the Civil War consistently favored white Europeans. Asians
were the first to experience restrictions, and many came to the United States
as laborers. The Chinese Exclusion of 1882 codified restrictions limiting
Chinese immigration and restricting Chinese travel to labor purposes. This
legal status remained in effect until 1943. In the 1920s, immigration quotas
came into effect, and generally, almost all Asians and most Southern and
Eastern European immigration was strictly limited, while immigration from
Western Europe continued at a more rapid pace. From 1952 to 1965, racial
distinctions were omitted from immigration restrictions, however other means of
establishing quotas favored immigration from Ireland, the United Kingdom, and
Germany.
The consistent theme of all immigration
legislation until 1965 was based on principles favoring whites and those from
Western Europe, and restricting all others - Mexicans and Latin
Americans, Asians, Indians, Africans, and those from Eastern Europe. The
idea that "all are created equal" was not a guiding principle for
immigration policy. The Immigration and Nationality Act of 1965 did not
eliminate regional quotas altogether, but equalized them somewhat on a
geographic basis, and also established criteria for naturalization that
included labor skill and family unification (existing relatives in the United
States).
The past five decades since these significant
revisions of federal civil rights law and practice with regard to race and
nationality has been a period in which other excluded groups continue to fight
for rights denied in various legal and civil spheres. Early women’s rights
movements started in the mid nineteenth century and included many crossover
advocates who also worked for the abolition of slavery. Marking the Seneca
Falls Convention in New York (1848) as the formal beginning of this movement, the
19th Amendment to the Constitution extended suffrage to women in 1920, after
approximately 70 years of activism. The Equal Rights Amendment (ERA) was passed
by Congress in 1972 and ratified by the requisite number of states in 2020,
however, it remains in a legal limbo between ratification and full status of
law. The ERA has been approved by three-fourths of the states, a number which
includes Texas and Tennessee, but none of the other Bible belt states.
In the legal realm most relevant to the subject
matter of this volume – religious and legal exclusion and oppression of
persons on the basis of sexual orientation or identity, there is a great
deal of legislation under consideration that could address the issue of
equality for these groups. Marriage equality was only recently gained for same-sex
couples in 2015 by the Supreme Court decision Obergefell v. Hodges, however,
this was a 5-4 decision, reflecting the legal and political reality of the
struggle for equality. This right was further solidified by the Respect for
Marriage Act, passed by Congress in 2022.
The extremely arduous path toward full civic
equality for all persons, not qualified by sexuality, gender, race, ethnicity, geography,
or other characteristics, is affected by the willingness of people of faith and
communities of faith to recognize the moral development of human inequality and
equality in our history, the proper provenance of law and religion, and the sensitive
issues of Bible interpretation in the light of the historical distance from
ancient cultures, and above all, in the light of love.
[1] (https://www.un.org/en/about-us/universal-declaration-of-human-rights)
[2] Blight, D.W., Frederick
Douglass, p. 90 and Meyer, Henry, All on Fire: William Lloyd Garrison
and the Abolition of Slavery, p. 110.
[3] See my companion volume, Deconstructing
Christians and the Third Wave: Unstoppable Beloved Community, Part 3:
Reflections on Race, and Chapter 24: Truth, Justice and Reparations.
[4] Library of Congress
Research Guides. https://guides.loc.gov/american-indian-law/Legislation