Wednesday, September 15, 2010

Civil Liberties does not equal Civil Rights: Case in Point Here

image of U.S. Civil Rights buttons is from here
Repeatedly I encounter people who believe that strengthening "civil liberties" will inevitably lead to "civil rights". There are several reasons why this is not the case.

The sphere of concern for Civil Liberties attorneys and law is violations of individual liberties as defined by the U.S. government. Individual rights do not translate to class-based or group rights. Civil Rights were not originally part of, understood as necessary to, or protected by the U.S. Constitution. That's why they have had to be fought for by oppressed groups in the U.S.--demographic/political groups who are not white het men.

The U.S.'s Founding Fathers were WHM with property--some of their property was thought to be and according to White Man's Laws were in the form of land, some legally was "their" slaves and "their" wives. Needless to say, white women, women of color, and men of color didn't have "civil liberties" protections white WHM wrote those protections into the Constitution for themselves.

The Founding Fathers didn't quite imagine the time when Blacks would rise up against the institution of slavery, and later against Jim Crow laws and culture, towards being recognised as fully human, as just as human, as white men. Nor did they imagine women of all colors rising up to achieve rights of full personhood relative to men. Nor did they imagine the challenge to racist heteropatriarchy that would be brought by LGBT people.

In a Civil Liberties-based society, when women were property and privacy was a right (of husbands only), then preventing men from beating women and children at home was a Civil Liberties violation of the men, not a Civil or Human Rights violation of the children and women--or, even, a Civil Liberties violation of those children and women as those people historically didn't have the right to privacy from men.

Whites remain institutionally and politically empowered and protected in ways U.S. history with its actors and its laws, made sure would not be equally extended to non-whites; similarly men hold human rights that women do not possess.

Civil Liberties offers no mechanisms or means for LGBT people and women of color, white women, and men of color to achieve equality with WHM under the law. Only Civil Rights legislation is designed to and has endeavored to accomplish legal equality among people based on matters of race, gender, and sexuality, also on the basis of age, ability, and economic class.

What follows is from here at FindLaw:

My current location: Chicago, IL

"Civil Rights" vs. "Civil Liberties"

It is important to note the difference between "civil rights" and "civil liberties." The legal area known as "civil rights" has traditionally revolved around the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) in settings such as employment and housing. "Civil liberties" concern basic rights and freedoms that are guaranteed -- either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers. Civil liberties include:
  • Freedom of speech
  • The right to privacy
  • The right to be free from unreasonable searches of your home
  • The right to a fair court trial
  • The right to marry
  • The right to vote
One way to consider the difference between "civil rights" and "civil liberties" is to look at 1) what right is affected, and 2) whose right is affected. For example, as an employee, you do not have the legal right to a promotion, mainly because getting a promotion is not a guaranteed "civil liberty." But, as a female employee you do have the legal right to be free from discrimination in being considered for that promotion -- you cannot legally be denied the promotion based on your gender (or race, or disability, etc.). By choosing not to promote a female worker solely because of the employee's gender, the employer has committed a civil rights violation and has engaged in unlawful employment discrimination based on sex or gender.

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What follows is from at the Blog of Rights. Please click on the title to link back.

Court Ignores America's Grim History of Racial Discrimination

It would seem, at least according to a recent federal court decision, that referring to a black man as "boy" has no racial implications whatsoever, but is merely "conversational."

As Adam Liptak reported yesterday in the New York Times, a federal appeals court in Atlanta ruled that John Hithon, a black employee at Tyson foods who claims he was discriminated against because of his race, could not rely on the judicial system for relief. The case began after Hithon was passed over for promotion when two jobs as shift supervisors opened up. This was after Hithon "spent 13 tough years working his way into the lower ranks of management at a Tyson Foods chicken plant in Gadsden, Ala." He sued Tyson for racial discrimination. As evidence, he cited his manager's tendency to refer to black employees as "boy." According to the Times, the court had trouble seeing the connection between that epithet and Hithon's allegation of racial discrimination:

"The usages were conversational," the majority explained . . . and "nonracial in context." Even if "somehow construed as racial," the unsigned 2-to-1 decision went on, "the comments were ambiguous stray remarks" that were not proof of employment discrimination.

This decision came after two mostly white Alabama juries — one in 2002 and the other in 2007 — ruled in Hithon's favor. But the appeals court apparently had very little confidence in those juries' ability to understand the language of racial discrimination — it ruled that "a reasonable jury could not have found" that a white supervisor addressing a black employee as "boy" constituted evidence of discrimination.

This misguided decision highlights the pitfalls of treating the law as if it exists in a historical or cultural vacuum. Liptak points out in an earlier iteration of this case, the same appellate court rested its analysis on a shaky distinction:

"The use of 'boy' when modified by a racial classification like 'black' or 'white' is evidence of discriminatory intent," the panel said. But "the use of 'boy' alone is not evidence of discrimination."

Racial lessons are clearly hard for America to learn. This case is haunted by the legacy of the Memphis Sanitation Strike (among many historical examples). When African-American sanitation workers went on strike and held up the now-iconic "I AM A MAN" signs, it was more than a general call for equal rights; it was a specific response to the legacy of racial discrimination in the workplace. It sought to change a world in which, as described by one of the sanitation workers, "white supervisors called grown men 'boy' and sent them home without pay for the slightest infraction." The battle for workplace equality was intimately tied to the battle against routine acts of disrespect.

And yet, here we are again. This recent decision flies in the face of the work of countless civil rights activists who aimed to dismantle both the infantilization and workplace discrimination suffered by black workers. It seems that even in the era of Obama, legal institutions sometimes reveal themselves as startling ignorant of — or indifferent to — the stark history and ongoing reality of racial discrimination.

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