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(DV) Goldsmith: The New Jim Crow







The New Jim Crow
by Patricia Goldsmith
May 9, 2005

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The marriage license did not exist before the Civil War. George and Martha Washington, Abe Lincoln and Mary Todd, and every other American up to that point in time got married in a church. Why at that exact moment in time, you may wonder for half a second, before you realize the obvious answer: to stop the world from turning the color of café au lait. That makes the marriage license the last extant vestige of Jim Crow in our society.

Of course, there had been miscegenation from the very beginning. We now know for certain, from DNA testing, that Thomas Jefferson had children with his slave, Sally Hemming. Closer to our own point on the timeline, Strom Thurmond fathered a child with a black woman who worked for his family in the segregated South.

Preventing the mixing of the races -- most specifically the sexual mixing -- was the foundation for an entire system of post-Civil War law devoted to excluding and subjugating a class of people who had recently taken a giant leap forward, in terms of legal standing and personal liberty. That was Jim Crow. Blacks sat in the back of the bus, used separate water fountains, and went to separate schools.

With the defeat of the South and the abrupt ripping away of the elaborate social system of repression and denial around slavery, the revealed reality of white ownership of black human beings created the horrified -- and projected -- fantasy of the animalistic, hyper-sexual black buck suddenly free to return the master’s favor by rampaging and raping the flower of Southern womanhood. It was this particularly vile fantasy, based on collective white guilt, that justified the lynchings and terror visited on freed blacks.

As with the original Jim Crow laws, the new restrictions states are imposing on marriage are occurring just as the possibility of recognizing age-old arrangements comes into conscious social awareness.

Although historically the penalty for homosexual acts has been violence and death, there are nevertheless profound differences between the slave experience and any other form of persecution. The right is buying up black evangelicals who can make that point -- just as they’re getting a lot of Democrats at bargain basement prices these days. They need as many African-Americans as they can get to sit up on the dais for events like Justice Sunday.

Consider the Reverend Ken Hutcherson, an African-American preacher from Redmond, Washington, who has decided that, with God on his side -- and there can be no doubt that He is -- The Black Man, as he affectionately refers to himself, can take on Microsoft. Hutcherson hated white people before he found God -- and a white wife and congregation. Now nothing and nobody will stop him from telling the Truth. “You tell me what I went through as an African-American, when they talk about discrimination, compared to what gays go through with discrimination -- it’s the difference between night and day, not even close. . . . They can stop choosing to do what they do, and they can hide it anytime they want. They can hide their homosexuality.” (“A Megachurch’s Leader Says Microsoft Is No Match,” New York Times, 5-2-05)  

It is, perhaps, also relevant that a groundbreaking study by the National Gay and Lesbian Task Force Policy Institute and the National Black Justice Coalition shows that “black same sex couples have more to gain from the legal protections of marriage, and more to lose if states pass amendments banning marriage and other forms of partner recognition. . . . The study finds that Black lesbian couples are raising children at almost the same rates as Black married couples, and that Black same-sex couples raise children at twice the rate of White gay couples. They also earn less, are less likely to own a home, and more likely to hold public sector jobs.” (“Black same-sex households: A report from the 2000 census,” Alain Dang and Somjen Frazer,

Still, there is a grain of truth in what Hutcherson says, in that most of the people in the gay pride movement have deliberately taken action to be publicly identified as part of a hated group. It is a movement explicitly based on individual sacrifice and specific, repeated, voluntary acts of self-identification.

One of my favorite thinkers is Joan Nestle, founder of the Lesbian Herstory Archives, who brought to life for me the stupendous bravery of lesbians in the ‘50s. I noticed these women when I was growing up in small-town Michigan: the strange person on the diner stool with the slicked back hair and thick male glasses and clunky watch and -- jolt --breasts. I got away as fast as I could. They scared me to death.

But Nestle writes about something bigger than the institutional shaming -- the stigma of mental illness, the fear of being scooped up by the vice squad and having your name appear in the local paper, the life-destroying power of a dishonorable discharge -- namely, the eroticism fueled by the raw courage it took to cross that line. In a documentary about her life, Hand on the Pulse, she recalls the falling-off-the-side-of-a-mountain romance she experienced when a lover held her on her lap, looked her deep in the eyes, and said, “They say I’m damned to hell if I do this,” then dipped her back and kissed her.

What would you risk to be with the one you love?

In 1970, gay people rioted in the Stonewall bar when the vice squad showed up. In the ‘80s, queers were Acting Up; in the ‘90s they were telling, asked or not. And just two weeks ago, an NYU Law School student, Eric Berndt, publicly challenged Supreme Court Justice Antonin Scalia with the question: “Do you sodomize your wife?”

Berndt later explained that he intended “to subject a homophobic government official to the same indignity to which he would subject millions of gay Americans,” referring to the fact that, had Scalia’s view prevailed in Lawrence v. Texas, adult gay people could still be prosecuted for consensual sex in the privacy of their own homes.

While Scalia finds no implied right to privacy in the Constitution, he does find religion there, in spite of 200 years of judicial consensus on the meaning of the disestablishment clause.

In the fall of 2004, shortly after he began his unprecedented public campaign to become Chief Justice, Scalia asked an audience at an orthodox synagogue, “Do you think it’s [separation of church and state] going to make Jews safer? It didn’t prove that way in Europe.” He stopped short of saying the word, but others are saying it for him, in describing the “slaughter” of the unborn: Holocaust. And if the time is coming for judges to pay, as Tom DeLay has faithfully promised, you can be sure that judgment is coming for the women who killed their babies. The Attorney General of Kansas, following John Ashcroft’s example, is itching to get his hands on confidential abortion records.

To disguise their reliance on violence, now and throughout history, the haters have a philosophy. It’s called fundamentalism. It’s not that they hate us, they only hate the sin we commit. It’s not that they want to kick us in the teeth, it’s that the Constitution must be construed in the strictest possible way in order to prevent individual judges from acting on their own personal desires. For that reason, they argue, it’s not important to have a mix of views and opinions on the Court. In fact, there must be only ONE view: a rigid letter-of-the-law, originalist interpretation that prohibits action by the wicked, relativistic ego.

But if you take this extreme position, it follows that one deviation for personal profit invalidates all your lofty claims to answer to a higher law. In Scalia’s case, that one exception is a doozie: Bush v. Gore. Scalia shocked veteran court-watchers in 2000 by departing from his strict constructionist philosophy, his often-reiterated passion for states’ rights, and his commitment to writing decisions that contribute to the body of law, rather than one-off, ad-hoc opinions. Antonin Scalia the man -- not his philosophy -- made George W. Bush president.

A new Court that may very well carry Scalia’s name is being formed. The world is about to change. At this tipping point, we all have a moral choice.

In a recent interview in The Advocate (“Tammy Lynn Michaels: Committed to love,” 4-29-05), Melissa Etheridge’s partner, Tammy Lynn Michaels, talked about going through Melissa’s cancer in the context of inequality, and concluded, “But you know what, they can have the taxes and the health insurance and all of it. Because at the end of the day, we have each other and that’s all that matters.” Amen. If we remember God is love, we can save ourselves.

Patricia Goldsmith is a member of Long Island Media Watch, a grassroots free media and democracy watchdog group. She can be reached at:

Other Articles by Patricia Goldsmith

* The Nuclear Option
* Activist Judges
* Terry Schiavo: Never Forget