Nation Topics - Lawsuits
News and Features
Eben Moglen has been
representing parties sued by the recording industry and is working on a
book about the death of intellectual property.
In the late summer and fall of 1997, small news leaks began appearing
that Mayor Edward Rendell of Philadelphia (who is now governor of
Pennsylvania) was thinking about suing the firearms indus
On February 26 for the first time a judge will make substantive and
procedural rulings on a probable eight lawsuits that are at the cutting
edge of the movement to compensate African-Americans
On November 7, voters in Alabama erased from that state's Constitution a provision dating from 1901 that declared that "the legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro, or descendant of a Negro." This declaration represented in part a desire by white supremacists to express as fully as possible their intention to expunge the racially egalitarian symbols, hopes and reforms of Reconstruction. Although Alabama had never enacted a law expressly authorizing interracial marriage, in 1872 the state's Supreme Court did invalidate the law that prohibited such unions. But it promptly reversed itself in 1877 when white supremacists regained power. The Alabama Constitution's disapproval of interracial marriage, however, had still deeper roots. It stemmed from the presumption that white men had the authority to dictate whom, in racial terms, a person could and could not marry. It was also rooted in the belief that certain segments of the population were simply too degraded to be eligible as partners in marriage with whites. At one point or another, forty states prohibited marriage across racial lines. In all of them blacks were stigmatized as matrimonial untouchables. In several, "Mongolians" (people of Japanese or Chinese ancestry), "Malays" (Filipinos) and Native Americans were also placed beyond the pale of acceptability.
Rationales for barring interracial marriage are useful to consider, especially since some of them echo so resonantly justifications voiced today by defenders of prohibitions against same-sex marriage. One rationale for barring interracial marriages was that the progeny of such matches would be incapable of procreating. Another was that God did not intend for the races to mix. Another was that colored people, especially blacks, are irredeemably inferior to whites and pose a terrible risk of contamination. The Negrophobic Thomas Dixon spoke for many white supremacists when he warned in his novel The Leopard's Spots that "this Republic can have no future if racial lines are broken and its proud citizenry sinks to the level of a mongrel breed." A single drop of Negro blood, he maintained apocalyptically, "kinks the hair, flattens the nose, then the lip, puts out the light of intellect, and lights the fires of brutal passions."
Although opponents of prohibitions on interracial marriage have waged struggles in many forums (e.g., academia, the churches, journalism), two in particular have been decisive. One is the courtroom. In 1967 in the most aptly titled case in American history--Loving v. The Commonwealth of Virginia--the United States Supreme Court ruled that prohibitions against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment. (Although much credit is lavished on the Court's decision, it bears noting that nineteen years earlier, in 1948, the Supreme Court of California had reached the same conclusion in an extraordinary, albeit neglected, opinion by Justice Roger Traynor.) When the federal Supreme Court struck down Jim Crow laws at the marriage altar, it relied on the massive change in public attitudes reflected and nourished by Brown v. Board of Education (1954), Martin Luther King Jr.'s "I Have A Dream" address (1963), the Civil Rights Act (1964) and the Voting Rights Act (1965). The Court also relied on the fact that by 1967, only sixteen states, in one region of the country, continued to retain laws prohibiting interracial marriage. This highlights the importance of the second major forum in which opponents of racial bars pressed their struggle: state legislatures. Between World War II and the Civil Rights Revolution, scores of state legislatures repealed bans against interracial marriage, thereby laying the moral, social and political groundwork for the Loving decision. Rarely will any court truly be a pioneer. Much more typically judges act in support of a development that is already well under way.
Unlike opponents of Brown v. Board of Education, antagonists of Loving were unable to mount anything like "massive resistance." They neither rioted, nor promulgated Congressional manifestoes condemning the Court, nor closed down marriage bureaus to prevent the desegregation of matrimony. There was, however, some opposition. In 1970, for example, a judge near Fort McClellan, Alabama, denied on racial grounds a marriage license to a white soldier and his black fiancée. This prompted a lawsuit initiated by the US Justice Department that led to the invalidation of Alabama's statute prohibiting interracial marriage. Yet the Alabama constitutional provision prohibiting the enactment of any law expressly authorizing black-white interracial marriage remained intact until the recent referendum.
That an expression of official opposition to interracial marriage remained a part of the Alabama Constitution for so long reflects the fear and loathing of black-white intimacy that remains a potent force in American culture. Sobering, too, was the closeness of the vote; 40 percent of the Alabama electorate voted against removing the obnoxious prohibition. Still, given the rootedness of segregation at the marriage altar, the ultimate outcome of the referendum should be applauded. The complete erasure of state-sponsored stigmatization of interracial marriage is an important achievement in our struggle for racial justice and harmony.
While partisans debate whether a victorious George W. Bush would nominate Supreme Court Justices who would overturn Roe v.
While the differences between George W. Bush and Al Gore may still be coming into focus for many Americans in the final weeks before the election, one is already stark. On tobacco, the leading cause of preventable death in America, Bush would return the nation to the failed laissez-faire attitudes of the past. A Gore administration could be expected to continue the course charted by President Clinton, the first truly anti-tobacco President.
Indeed, a Bush administration would solve so many of tobacco's problems that the Texan is virtually one-stop shopping for an industry that has drenched his campaign with cash. For one thing, he'd change the civil justice system. Clinton vetoed tort reform bills, but Bush has made such "reform" a keystone of his proposed social policy and points with pride to his record in Texas--in 1995 he placed draconian restrictions on the right to sue. Bush would help mitigate the fallout from the recent $145 billion verdict in the Engle lawsuit--the Miami class action on behalf of thousands of Floridians sickened by cigarettes--by signing a bill pending in Congress that would send all class actions to federal court. There, Engle would be decertified, downgraded into a handful of individual lawsuits, long before trial by a federal system hostile to tobacco class actions.
As to regulating cigarettes, Bush would likely work with a Republican Congress to enact a "compromise" regulation law, limiting some forms of tobacco marketing and granting toothless federal oversight in return for liability limits and giving tobacco a seat at the table of any regulatory process. Bill Clinton was the first President to make the regulation of tobacco one of his signature policy initiatives. Although the Supreme Court ultimately shot down Food and Drug Administration oversight of cigarettes, Clinton used the bully pulpit of the presidency to put tobacco on the national agenda in a way it had never been before, fulminating against the industry for peddling nicotine to children.
Bush's record indicates he would pay lip service to keeping kids off cigarettes but would put much more energy into vilifying plaintiffs' lawyers for getting rich from lawsuits that attack the industry for targeting children. Bush has pledged to kill off a multibillion-dollar RICO action by the Justice Department that charges that the cigarette companies concealed their product's deadliness, and he would likely rescind or stymie numerous Clinton executive orders, nascent regulations and programs dealing with everything from secondhand smoke to funding research on Big Tobacco's internal documents.
Finally, Bush would be likely to back incursions by domestic cigarette makers into foreign markets. He would be much less disposed to sign on to a proposed World Health Organization treaty on tobacco and health and very prone to weaken it, to the benefit of a global tobacco industry now menacing Asia, and to the detriment of millions of potential new smokers who will become victims of cigarette-related disease.
Despite all the palaver, the denouement came quickly.