On the courts, the Confederate flag and Jennicet Gutiérrez

Another day in June, another day we have yet to hear back from the Supreme Court about its decision in Obergefell v Hodges, the case that may well legalize same-sex marriage across the United States.

But another court released its decision in a case of considerable significance to LGBT rights earlier this week that warrants a look. A Sacramento County judge ruled on Tuesday that California’s proposed “Sodomite Suppression Act” — with its demand “that any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head” — is patently unconstitutional and that California’s Attorney General Kamala Harris need not officially circulate the summary for the proposed Act so that it could begin gathering signatures.

I was baffled by the response across the media that Kamala Harris’ request of relief from her duty to issue and circulate proposed ballot initiatives wouldn’t make it through the courts. Writing for the Atlantic, Russell Berman cited unnamed “legal experts” who said that “Harris has no other choice but to process McLaughlin’s proposal.” When I wrote about it then, I felt so incredulous that I had to delete the lines of snark and expletives that I had typed up in response.

It seemed like an open and shut case of incitement, unbecoming of the First Amendment’s protection.

California AG Kamala Harris

California AG Kamala Harris

That was exactly what Susan Talamantes Eggman — chair of the California LGBT Caucus — was quoted as saying in the Sacramento Bee: “This measure was unconstitutional, and was itself speech inciting violence, and therefore unprotected by the First Amendment.” Kamala Harris, for her part, said it loud and clear: “this is not about whether we like something or not, or whether we simply find it offensive or troubling. In this case, we are talking about a proposal that literally is calling for violence.”

I was concerned then, as now, that this ballot initiative was far more serious and represented something far darker than a “long-shot,” “kooky” or even “offensive” idea, as Russell Berman called it. In a state and country as a whole in which right-wing terror remains a largely unacknowledged but increasingly serious threat, these suggestions cannot be ignored.

Last week, of course, America woke up to some degree about the reality of far-right extremism in the aftermath of the mass shooting at the Emmanuel AME Church in Charleston, South Carolina as mainstream news outlets acknowledged the shooter’s white supremacist beliefs. Meanwhile, this same week, another black church in North Carolina burned down in an apparent arson. These attacks may or may not have been related. But evidently, both were motivated by hate. In order to fight it, we have to stick together.

We should be glad, for example, that people from all corners are calling for the removal of the Confederate flag from public places and state emblems all over the South. It’s well worth remembering, as Jeet Heer points out, that the symbol was actually resurrected in the 50’s and 60’s as a symbolic backlash to the burgeoning civil rights movement.

In explaining why he thought taking the Confederate flag down is both important and necessary, Heer switched his argument over to describing why the yearly ritual of gay pride is so important.

It follows that taking down the Confederate flag is about removing a symbol that has for decades stood as an incitement to violence against black people most specifically.

This is an important argument. Yet, as with California’s proposed “Sodomite Suppression Act,” many have rushed to the Confederate flag’s defense in the name of the First Amendment, daring to invoke its name in vain.

I assume most people reading this will get why California’s Attorney General should not have to issue and circulate a ballot measure demanding all gay people be shot in the head. I assume most people reading this will, likewise, understand why Confederate imagery must be removed from the emblems, flags, and public places of the South.

So I am wondering how our readers responded to the story of how a trans Latinx activist interrupted President Obama last night at the White House Pride reception. Demanding an end to the detention and imprisonment of all LGBTQ immigrants from deportation centers, Jennicet Gutiérrez shouted at the President — who has deported more immigrants than any President in US history — while attendees of the reception shhhhh’d and booed her.

Violence against trans people, and trans people of color in particular, is epidemic.  There were 1,359 instances of violence against LGBTQ people in 2014 alone, and that violence disproportionately affected trans people. So, though I’m not surprised Ms. Gutiérrez was escorted out, what does alarm me is the overwhelming lack of self-awareness and solidarity on display in this video.

I couldn’t say it any better than Carloz Maza put it on Twitter last night:

Maza later even tweeted a brief but excellent history lesson:

James Neimeister is a freelance writer from Ohio. His interests include: Russia, Ukraine, education, technology, and "cyberspace."

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