Good Trouble, Bad Trouble

On Tuesday, Joe Biden signed the Respect for Marriage Act. I enjoyed his speech; he was in full Dark Brandon mode in his mirrored sunglasses. The Act itself is not the full-throated protection for marriage equality many people would like to see, but it does draw a line in the sand if Obergefell, the Supreme Court case that legalized same-sex marriage, falls prey to the same line of reasoning about privacy rights the Supreme Court used to reverse 50 years of precedent on legal abortion. That is the logical endpoint of the argument Justice Clarence Thomas made in his concurrence in Dobbs, the case that reversed Roe v. Wade and ended women’s right to choose.

Biden handed the pen he used to sign the Act to Kamala Harris, whose marriage to a white man would have been illegal before Loving v. Virginia, also potentially under attack if the Court lets its decision in Dobbs fall off the slippery slope to its logical endpoint.

Loving is a relatively recent case—states were not required to permit interracial marriages before 1967, when a unanimous Supreme Court held that distinctions drawn according to race were generally “odious to a free people” and that Virginia’s anti-miscegenation law violated the Equal Protection Clause of the Fourteenth Amendment. Loving involved two Virginia residents, Mildred Jeter, a black woman, and Richard Loving, a white man, who went to the District of Columbia to get married. Upon their return to Virginia, they were charged with violating the state’s anti-miscegenation statute, which banned interracial marriage, and were each sentenced to spend one year in custody.

The nine white men on the Supreme Court in 1967 understood, in this case, how important their role in protecting people’s rights was. Virginia argued that the law applied equally to Blacks and whites, so it passed muster under a rational purpose test. But the court, conservatives and liberals, held that the law’s sole purpose was “invidious” racial discrimination and that it could not withstand the strict scrutiny the Court was required to subject it to in making its decision.

Today, that sort of moral certainty no longer exists on the Court. So passing a law that backstops Obergefell and Loving, requiring states to respect marriages if they were legally entered into in another state, is a last-ditch effort to make sure rights are protected. Sometimes a thing is bigger than what it appears to be. Despite the criticism that it doesn’t go far enough, this Act, in the final analysis, likely will be a big deal.

Biden admonished the crowd that it was all the same—attacks on Jews, Muslims, Blacks, the LGBTQ community—and that protecting these rights isn’t a partisan act but one that is fundamentally American. It’s fitting that this step was taken by Joe Biden, who, as Vice President, “accidentally” got ahead of Obama on marriage equality before Obergefell was the law. Hearing Biden lecturing the country on the importance of this law, as well as additional steps he’s taking to tackle other types of hate like antisemitism and animus against Muslims, underlined the interconnectedness Biden sees between these issues and his commitment to confronting them. It was a big day.

This administration is doing things, both big and small, to protect civil rights. Small, unsung advances like Tuesday’s from DOJ’s Civil Rights Division, which convicted a 61-year-old Michigan man of hate crimes after he made death threats to Starbucks employees who wore Black Lives Matter T-shirts and placed a noose in a vehicle with an attached handwritten note that read, “An accessory to be worn with your ‘BLM’ t-shirt. Happy protesting!” On Wednesday, the Civil Rights Division extracted a settlement from the Southern California city of Hesperia, to end practices that discriminated against Blacks and Latinos in housing.

You probably won’t read a lot about either one of these cases in the news. But that’s all the more reason to have confidence in a Justice Department that does the right thing to little or no fanfare. It’s not the public spotlight that matters. This administration is making lots of “good trouble.” John Lewis would be proud.

But it was a different story with one of the men who hopes to replace Biden in the White House. On Wednesday, Ron DeSantis, governor of Florida, decided to engage in still more politicization of public health. DeSantis asked Florida’s Supreme Court to empanel a grand jury to “investigate any and all wrongdoing in Florida with respect to COVID-19 vaccines.” Leave aside for the moment that DeSantis is Florida’s governor, not its attorney general. Prosecutors investigate crimes; they don’t go on wide-ranging fishing expeditions. And that’s exactly what this is.

DeSantis’s comments included his expectation that a grand jury will bring “legal accountability for those who committed misconduct.” That’s not what grand juries do. They decide whether to charge specific people with specific crimes; this is just a call to harass public-health professionals and those involved in the near-miracle of getting the Covid vaccine to people around the world with lightning speed with a hunt for random “misconduct.”

During the height of the Covid pandemic, DeSantis rose to national attention by constantly following Trump’s lead on the politicization of public health. He opposed face-mask mandates, stay-at-home orders, and vaccination requirements. In 2021 he signed a law that prevented businesses, government entities, and other venues at high risk for the spread of the Covid virus, like schools and cruise ships, from requiring proof of vaccination. DeSantis has never been a strong advocate for measures that improve public health. He opposes gun control and received an A+ rating from the National Rifle Association. So it seems quite clear that he is convening a grand jury not because he’s concerned that crimes have been committed—he hasn’t even specified the crimes that should be investigated—but because he thinks it’s good for his political future. Taking extreme positions like this has benefited him in the past.

DeSantis isn’t just politicizing public health; he’s also politicizing Florida’s criminal justice system. Here’s another instance of history rhyming if not repeating, with shades of Trump’s efforts to politicize the Justice Department to claim victory after he lost the election in 2020. Just like Trump pushed for investigation of voter fraud when there was no basis for it, as a vehicle for staying in power, DeSantis is now pushing a proverbial witch hunt designed to help him get elected.

This all dovetails with the retirement of Dr. Fauci, who wrote a remarkable opinion piece in the New York Times on Wednesday. Reflecting on his service to every American president since Ronald Reagan, he wrote, “I ‌‌always speak the unvarnished truth to ‌presidents and other senior government officials, even when such truths may be uncomfortable or politically inconvenient, because extraordinary things can happen when science and politics work hand in hand.”

The unvarnished truth is politically inconvenient for Ron DeSantis. Grand juries investigate crimes. It’s clear that here, there is no predication for the criminal investigation DeSantis has ordered. The authority on the topic of vaccines and their use during the Covid pandemic, Dr. Fauci, wrote these words: “The major successes of the C‌‌ovid-19 pandemic have been driven by scientific advances, particularly life‌saving vaccines that were developed, proven safe and effective in clinical trials and made available to the public within one year—an unprecedented feat.”

Florida is in the grip of a man who wants to be president and is willing to use authoritarian measures to get there. Convening a grand jury to conduct a meritless criminal investigation in hopes that it will advance his own political future is high-Trump. DeSantis is what we should all fear: someone a little slicker and smarter than Trump, someone who cleans up better but is still willing to use Trump’s tactic of abandoning the rule of law when it interferes with his personal goals. What’s next from DeSantis? A grand jury to investigate his political opponents? Why not? The sky’s the limit for a politician who is willing to politicize justice.

Even as Trump’s political star seems to show signs of waning, we are far from out of danger in this country.

We’re in this together,

Joyce