Gay Marriage and Immigration
The first day of the LBJ Presidential Library’s Civil Rights Summit offered a thought-provoking contrast between the way advocates are approaching two of the more controversial topics of recent years: gay marriage and immigration reform.
The first panel posed the question of whether gay marriage is a civil right. It was no surprise that both panelists, lawyers David Boies (center) and Theodore Olson (right), agreed that it is. The two are from different points on the political spectrum–they argued against one another in 2000’s Bush v Gore–but they worked together to make the case against Prop 8, the 2008 ballot proposition in California that would have amended the state constitution to bar recognition of same-sex marriages, and they are working together now to overturn a similar measure in Virginia. During the course of the discussion, though, they took a more assertive stance than one might have expected. They offered some comments about the benefits of allowing gay couples to marry, and about the disadvantages that may be experienced by children whose parents are legally unable to marry.
Their overarching message, though, was that marriage is a fundamental right, one that the government has no authority to deprive people of. From a legal perspective, “the other side doesn’t have an argument,” Boies said. More than thirty federal judges have considered cases related to gay marriage since last June, he said and all of them have ruled in favor of access to marriage. For that matter, he continued, the Supreme Court has struck down several state laws that tried to deny someone the right to marriage on the basis of bad behavior (like child support scofflaws) or impracticality (imprisoned felons). In both cases, Boies noted, the people who supported the state laws had a rational perspective on the situation; the laws were nonetheless unconstitutional.
Immigration was the issue at hand in the second panel discussion of the day, and my colleague Brian Sweany opened the discussion with a logical question: should immigration be considered a civil rights issue?
That’s a question that gets trickier the more you think about it. Unauthorized immigrants do have certain legal rights in this country–not because they’re immigrants, but because they’re people. In 1982’s Plyler v Doe, for example, the Supreme Court struck down a Texas law that allowed the state to withhold public school funding for children of unauthorized parents. The Court’s reasoning was that if a child is in the country he has a right to public education, unless doing so would clearly violate the state’s interests. But the decision didn’t imply that the child has the right to be in the United States at the first place, and I can’t think of any major American politician who has ever advocated a generalized right to immigrate to the United States under any circumstances. A more common attitude is the one that Lyndon Johnson expressed when he signed the Immigration and Nationality Act of 1965: the rules should be fair. Having rules and restrictions about immigration is not, in itself, considered an injustice.
Similarly, neither of the panelists today–Julian Castro, the mayor of San Antonio, and Haley Barbour, the former governor of Mississippi–asserted that immigration is a civil right in itself, although Castro said that he sees immigration in that vein. (Interestingly, he argued that there’s a civil-rights dimension to the immigration debate in part because many American citizens are directly affected by it. About a million Americans, he noted, are married to undocumented immigrants, and “we just talked about the importance of marriage as a fundamental right.”) Both Barbour and Castro offered comments that suggested some empathy for unauthorized immigrants. Barbour even offered a defense of former Florida governor Jeb Bush’s recent comment that many unauthorized immigrants cross the border as an “act of love” for their families. But both grounded their arguments in pragmatic terms, and neither cast the issue in terms of rights. Castro said that he was “uncomfortable” with the number of deportations that have taken place during Barack Obama’s presidency in part because most of the people deported have not been criminals or troublemakers. Barbour said that immigration reform could help the nation’s economy, and that hardliners within his party aren’t being practical. Be wary of politicians who tell you they’ll deport the 11 million or so unauthorized immigrants who are already in the country, he warned: “They’ll lie to you about other things too.”
The summit continues this evening with a speech from former President Jimmy Carter. The schedule for Wednesday and Thursday is available here.
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