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July 3, 2015 2

Yes, Justice Thomas, the Government Can Deprive People of Dignity

The word “dig­nity” appears 30 times in last week’s Supreme Court mar­riage equal­ity case, Oberge­fell v. Hodges. Describ­ing the same-sex cou­ples who aspired to marry, Jus­tice Anthony Kennedy, writ­ing for the 5–4 major­ity, stated:

Their hope is not to be con­demned to live in lone­li­ness, excluded from one of civilization’s old­est insti­tu­tions. They ask for equal dig­nity in the eyes of the law. The Con­sti­tu­tion grants them that right. supreme-court-civil-rights




In a bit­ter dis­sent, Jus­tice Clarence Thomas demurred, stat­ing that “the Con­sti­tu­tion con­tains no ‘dig­nity’ Clause.” He argued that the gov­ern­ment is “inca­pable of bestow­ing dig­nity,” stat­ing flatly that” human dig­nity can­not be taken away by the government.”

Aston­ish­ingly, Jus­tice Thomas then attempted to prove his dubi­ous propo­si­tion by cit­ing two extreme and rep­re­hen­si­ble gov­ern­ment actions that were actu­ally designed to deprive vic­tims of “equal dig­nity under the law” – slav­ery and the incar­cer­a­tion of Amer­i­cans of Japan­ese descent dur­ing World War II:

Slaves did not lose their dig­nity … because the gov­ern­ment allowed them to be enslaved. Those held in intern­ment camps did not lose their dig­nity because the gov­ern­ment con­fined them.

But the gov­ern­ment did not “allow” blacks to be enslaved – the laws of the time facil­i­tated and empow­ered slave own­ers and enforced slavery.

And the Japan­ese Amer­i­can Cit­i­zens League was rightly “appalled” by Jus­tice Thomas’ blind­ness to the impact of the government’s shame­ful and unwar­ranted forcible relo­ca­tion and incar­cer­a­tion of 120,000 Amer­i­cans of Japan­ese descent, the vast major­ity of whom were citizens.

In 1942, just 10 weeks after the sur­prise attack on Pearl Har­bor, Pres­i­dent Franklin D. Roo­sevelt issued his Exe­cu­tion Order 9066, pro­vid­ing the legal author­ity for this depri­va­tion of lib­erty and dig­nity. Roosevelt’s exec­u­tive action was issued against the back­drop of wide­spread, base­less fears that Amer­i­cans of Japan­ese ances­try might pose a threat to the U.S – anx­i­ety that was cer­tainly fed by a long his­tory of prej­u­dice and xeno­pho­bia direct against Japan­ese Americans.

Those incar­cer­ated in the camps were uprooted from their com­mu­ni­ties, sep­a­rated from their fam­i­lies, their homes, and their pos­ses­sions, and lost their per­sonal lib­er­ties and free­doms until the end of the war.

Trag­i­cally, the president’s exec­u­tive order was bol­stered by addi­tional con­gres­sional enact­ments. And when the con­sti­tu­tion­al­ity of these actions was chal­lenged in two main cases before the U.S. Supreme Court – Hirabayashi v. U.S. andKore­matsu v. United States – the Court held that these clearly dis­crim­i­na­tory actions by the gov­ern­ment were, in fact, jus­ti­fied and constitutional.

Now, 73 years later, the Anti-Defamation League uses the cruel and unwar­ranted wartime treat­ment of Amer­i­cans of Japan­ese descent as a teach­able moment for our nation on the dan­gers of stereo­typ­ing, prej­u­dice, and racial pro­fil­ing. While we can honor and admire indi­vid­u­als that can retain their per­sonal dig­nity under the most adverse con­di­tions, there should be no doubt, Jus­tice Thomas, that the gov­ern­ment can deprive peo­ple of their “equal dignity.”

For­tu­nately, a Supreme Court major­ity has now held that the Con­sti­tu­tion man­dates that same-sex cou­ples are enti­tled to equal treat­ment – and mar­riage equality.

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August 9, 2013 1

An Apology For Discrimination – And A Lesson For The Future

August 10 marks the 25th anniver­sary of the enact­ment of the Civil Lib­er­ties Act, which pro­vided a for­mal apol­ogy for grave mis­treat­ment of Japanese-Americans dur­ing World War II. civil-liberties-act-manzanar-relocation-center

The sur­prise attack on Pearl Har­bor in Decem­ber 1941 incited wide­spread fear and inse­cu­rity across the coun­try.   In response to the par­tic­u­lar fear that Amer­i­cans of Japan­ese ances­try might pose a threat to the U.S., Pres­i­dent Franklin Roo­sevelt signed Exec­u­tive Order 9066 on Feb­ru­ary 19, 1942, the first step in the forced relo­ca­tion and incar­cer­a­tion of 120,000 Japanese-Americans.

Japanese-Americans who were incar­cer­ated in the camps through­out the west­ern United States were forcibly uprooted from their com­mu­ni­ties, sep­a­rated from their fam­i­lies and their homes and lost their per­sonal lib­er­ties and free­doms until the end of the war – with­out any con­crete evi­dence of their alleged dis­loy­alty to America.

Unfor­tu­nately, a bad sit­u­a­tion was made worse when Con­gress enacted a law in March 1942, autho­riz­ing a civil prison term and fine for a civil­ian con­victed of vio­lat­ing a mil­i­tary order.  The con­sti­tu­tion­al­ity of these acts was chal­lenged in two cases before the U.S. Supreme Court, Hirabayashi v. U.S. and Kore­matsu v. U.S.   But the wartime Supreme Court upheld the con­vic­tions, writ­ing that forced dis­place­ment and incar­cer­a­tion of Japanese-Americans were within the war pow­ers of Con­gress and jus­ti­fied by the need to pro­tect America’s national security.

In 1981, the Com­mis­sion on Wartime Relo­ca­tion and Intern­ment of Civil­ians held hear­ings to inves­ti­gate the treat­ment of Japanese-Americans, and it pub­lished its report, Per­sonal Jus­tice Denied, in 1983.  At that time, Kore­matsu, Hirabayashi and a third Japanese-American cit­i­zen, William Hohri, peti­tioned for for­mal review of their con­vic­tions.  ADL filed an ami­cus brief in Hohri v. United States, urg­ing the Court to reverse these con­vic­tions so as to pre­vent future civil lib­er­ties vio­la­tions by the government.

The Civil Lib­er­ties Act of 1988 for­mally rec­og­nized and apol­o­gized for these ter­ri­ble wartime injus­tices, and paid repa­ra­tions to an esti­mated 60,000 sur­viv­ing Japanese-Americans who were affected. ADL tes­ti­fied in sup­port of the leg­is­la­tion. The Act set an impor­tant stan­dard for account­abil­ity and for tak­ing national respon­si­bil­ity for past injustices.

Now, 25 years after the pas­sage of the Civil Lib­er­ties Act, the League has updated a com­pre­hen­sive class­room cur­ricu­lum on the wartime treat­ment of Japanese-Americans, includ­ing video his­to­ries of Japanese-American internees, and back­ground resources on Exec­u­tive Order 9066 and the Civil Lib­er­ties Act.  

The anniver­sary pro­vides a teach­able moment to reflect on how our nation can address past injus­tices – and an oppor­tu­nity to reded­i­cate our­selves to the ongo­ing work to con­front the dan­gers of stereo­typ­ing, dis­crim­i­na­tion, prej­u­dice, hate vio­lence, and racial pro­fil­ing.  Espe­cially as we con­front these and other daunt­ing chal­lenges today, it is clear that all Amer­i­cans have a stake in remem­ber­ing – and learn­ing lessons – from the past.

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