Maybe you think that the many recent rulings from the U.S. Supreme Court were appalling. Maybe you thought they were worthy of applause. Either way, the lesson is the same.
Voters in Utah, and in all the other states, need to start paying a lot more attention to what their Legislature is up to, who gets elected governor and who gets appointed to sit on each state’s courts. Because more decisions about our daily lives and personal rights are going to be made at the state level.
In theory, there’s nothing wrong with that.
All 50 states are, at least on paper, constitutional democracies. In every state, the will of the people is channeled through free and fair elections, where we select the people who will look after our interests, where authority is diluted through a separation of powers among the legislative, executive and judicial branches and a written constitution sets a minimum expectation for the respect for individual rights.
In practice, perhaps, not so much.
The fact is that, at least since the Supreme Court declared it unconstitutional for states to enforce a separation of the races in public schools and accommodations — and perhaps as far back as William Tecumseh Sherman’s little sojourn through Georgia — states have had less and less practice in the measured and honest governance.
With each federal court ruling banning segregation, gerrymandering, the subjugation of women, state promotion of religion, voter suppression, limits on free speech, criminalization of sexual behavior among consenting adults and unequal treatment for same-sex couples, the muscles state governments would use to uphold their own citizens’ equality before the law would atrophy a little further.
Not that they were all that strong to begin with.
Now that weight is suddenly being placed back on the shoulders of the states, their elected officials and their voters. And we have little time to build up the ability to bear that burden.
This is particularly worrisome in Utah, where progress on everything from air quality to marriage equality has depended on federal oversight and judicial scrutiny, both of which are apparently slipping away.
(Unless your state’s goal is to control the proliferation of firearms on the streets, or bar the use of taxpayers money on religious schools. Then, as that nasty character on “Seinfeld” might say, “No states rights for you!”)
The ruling overturning 50 years of federally guaranteed abortion rights and handing the matter back to the states is just the most recent, obvious and most emotional example.
The Supreme Court’s dominant conservative faction has been declining to protect people from their own state governments for some time now, specifically refusing to step in when state legislatures drew overtly racist or partisan legislative districts or committed other obvious violations of the Voting Rights Act.
In recent days the court has also given states more power to enforce their laws on Native American land, agreed with a bunch of fossil-fuel states, including Utah, that the EPA cannot regulate greenhouse gas emissions and, in a concurring opinion from Justice Clarence Thomas, explicitly raised the possibility that everything from school segregation to contraception to marriage equality may be handed back to the tender mercies of state government.
One hope should be that states have supreme courts, too. And constitutions with enumerated rights.
With the announcement the other day that Utah Gov. Spencer Cox is nominating to our highest court Judge Jill M. Pohlman, Utah stands to have a Supreme Court with more women (three) than men (two).
And, as we were reminded when Utah Planned Parenthood sued to block the state’s most stringent anti-abortion law, Utah’s Constitution has a passage promising that, “Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” That is a sentiment that the federal Constitution sadly lacks, in large part because of Utah’s refusal to ratify the federal Equal Rights Amendment.
Our Legislature’s respect for its own Constitution, its call for equal rights and for the role of the people in making law has been shown to be lacking, as when lawmakers fiddle with, or outright kill, provisions passed in voter referendums and refuse to act on judicial appointments made by the governor.
There once was a practice where the Utah Legislature’s own legal staff would warn lawmakers if a bill they were considering was likely to run afoul of either the federal or state constitution. But those lawyers pointed out once too often that the Legislature was not all powerful, so that protocol was abandoned.
A weaker federal government with stronger state governments is not necessarily evil. But the risk that such a nation would have racist, sexist and anti-democratic tendencies is the primary lesson of the last 160 years of American history.
While we wait for that lesson to be learned and the primacy of the federal Bill of Rights and 14th Amendment to be restored, it will be up to Utah’s activists, political parties, legislators, executive branch leaders, judges and all voters to stand up for the rights, not of states, but of human beings.