Shane Malone - Eureka Street

fathers and sons in front of Lincoln's
statue with his Gettysburg addre s
behind them, etched in stone:
It is rather for us to be here
dedicated to the great task remaining
before us-that from t hesc
honoured dead we take increased
devotion to that cause for which
they gave the last full measure of
devotion ... that this nation, under
God, shall have a new birth of freedom-and
that government of the
people, by the people, for the people,
shall not perish from the earth.'
Americans are never just jesting
when they say-and I heard it often­
'The Civil War is not yet over.'
All this in a country which prides
itself on the Cons ti tu tion, especially
the Bill of Rights and the 14th
amendment, guaranteeing its citizens
due process and equal protection.
How could everything be so
infected by considerations of race
After m onths pondering this
question I moved from Georgetown
to the north-east quarter, into a black
neighbourhood not far from Union
Station. Walking home from the station
mid-afternoon, I was mugged by
two m en with a knife. 'All part of the
American, inner urban experience',
I thought. The terrible realisation
for me, when three African-American
police came to inquire about the
incident, was that my predominant
recollection of the two assailants
was that they were black.
In a situation of such fear, race
takes over even in someone like
myself, who has often been in court
wondering why victims cannot
recollect more about their assailants
and who has prided himself for years
on guarding against race being a
determining factor in judgments.
Next morning! attended the local
church where Black History Month
was being celebrated and African­
Americans were running the singing
and most of the liturgy . It was a
healing experience to be ministered
by them while I came to acceptmore
on the unconscious level- that
not all these people had done this to
me. People were generously supportive
and apologetic as only Americans
can be. The priest was white but all
other major actors were African­
American. Their prayer was:
Lord, we want to be ready to
struggle just likeMcdgar in Jackson.
To walk just like King in Memphis
and Ch icago. To speak truth to
power everywhere ju st like
Sojourner and Douglass. To march
on Washington like Randolph and
Lewis. To walk in Jerusan
!em with You.
r RIDING THEMSELVES ON the first
amendment separation of church and
state, Americans are preoccupied
with religion in their public
discourse. Primary school children
were horrified to learn that we
Australians did not celebrate
Thanksgiving. They had difficulty
accepting that the
first Europeans to arrive in
foreign parts might not have
been religious pilgrims
forever grateful for their
new-found freedom. At
Christmas time, everyone
adopts the political! y correct
and religious! y neutral greeting,
even to collared clerics,
'Happy Holidays'. But then
every presidential address
ends, 'God bless America'.
Every sitting of the Supreme
Court commences with the invocation,
'God save the United States
and this honourable court'.
A highlight of the holiday season
is the President's lighting of the
Christmas tree. Having just
dispatched peace keepers to Bosnia,
he referred to the birth of the Prince
of Peace. Though the Supreme Court
has outlawed Christm as cribs in
public buildings, the most spectacular
crib is still displayed at the White
House and the Supreme Court foyer
boasts its own Christmas tree and
taped Christmas carols, judicially
vetted no doubt to ensure there is no
religious content.
In the Supreme Court, the big
cases this term are about gay rights
and gender rights. Women have challenged
public funding of the Virginia
Military Institute which trains men
for leadership using the' adversative
m ethod' which they may feel
constrained to soften if women are
present.
During oral argument, Justice
Ruth Ginsburg opined that leaders
may need to work with women as
well as men, and training should be
designed accordingly. Presumably
federal funding for such an exclusive
single sex institute will be struck
down on equal protection grounds.
When gay groups were making
gains in ski resort towns like Aspen,
Colorado voters passed a citizen
initiated referendum banning any
municipality from implementing
policies which would have allowed
gays to claim discrimination on the
basis of sexual orientation. Martina
Navratilova and others challenged
the measure.
The constitutional issue is
whether the Colorado constitution
now denies one
group equal protection
of its laws.
The proponents of
the referendum
say they were
simply ruling out
special rights for
special groups.
The opponents say
they only want the
right of every person
to be free of
discrimination.
The Supreme
Court was packed
for the argument. Each side has only
30 minutes to present its case. In
these cases, the judges are very
divided among themselves and often
use counsel as the intermediary
through which to make their points
publicly to their judicial colleagues.
The Solicitor-General of
Colorado was having difficulty
explaining the rational basis of the
law to Justice Stevens, who was
wondering what the rational basis
was for people elsewhere in Colorado
to be telling people in Aspen what to
do.
Ju stice Souter, appointed by
George Bush but emerging as one of
the liberals of the court, wanted to
know the rational basis for municipalities
being able to legislate against
discrimination on bases other than
sexual orientation, while preserving,
to the people of the whole state
by vote at referendum, the power to
ban discrimination on the basis of
sexual orientation or practice.
Justice Scalia came to the
stumbling Solicitor-General's
rescue:
If this is an ordinary equal protection
chall enge, isn't it an adequate
VOLUME 6 NUMBER 3 • EUREKA STREET 11