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July 3, 2015

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

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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