Each time the news of a discriminatory law passing, or a terrible school board decision is passed around, someone replies “That won’t stand up in court” or something similar. In my experience this happens both in person and on social media, and often then devolves into a discussion of the legal and constitutional merits of the law or rule. This discussion generally takes place among people who are not lawyers, and more importantly those who are not part of the class being discriminated against.
Sometimes they are wrong. Courts don’t always end up on the right side of a discriminatory issue in the long run. But even when they are right, the legal system takes time, and while that time is passing the discriminatory laws have real impact.
While we worked and waited for marriage equality to come to fruition in the US people suffered from the inequality not being able to be married created, through their inability to access all of the rights that legal marriage provides. While Wisconsin has been going through the legal process of dealing with it’s union busting laws, workers have been unable to exercise their right to organize. While North Carolina and other places restrict student’s access to appropriate bathrooms, transgender kids are put in the position of having no where safe to pee. When school districts have tried to institute the teaching of creationism or climate change denial students have been taught bad science while the courts do their work.
So every time someone says “Well, the courts will work that out” I have to wonder – in the meantime, how many people are harmed?
Worse, people often use this as an excuse not to be outraged, not to draw attention to an issue, and not to work to have a terrible law or rule changed. How do they think the system works? If no one objects, and no one fights to change unconstitutional or discriminatory laws they will not be changed. People have to rally together for these court cases to happen.
Marriage equality only changed in the United States through the courts because activists worked hard for that to happen. The Supreme Court only acted once it was clear which direction public sentiment was going. Courts often follow public opinion rather than leading it.
The next time you’re tempted to sit back, put up your feet, and assume the courts will deal with something harmful, remember that. The system won’t act without pressure, and when the system is slow people suffer.
Even once a court decision is handed down, actually getting it enforced is another struggle. Authorities (police officers, civil servants, teachers, lawmakers, medical practitioners, employers…) in the US knowingly violate the law all the time, even when the statute and precedent have been established for decades, and it usually takes another arduous lawsuit to get them to do what they’re legally required to do in the first place – and then they go and do it again once people have stopped paying attention.
And as you say, during all that, there are still people suffering and having their rights violated.
Yes, absolutely. Kim Davis (that county clerk who wouldn’t give same sex couples marriage licenses) was a prominent example of that problem. Yes, we won that one eventually, but people’s rights were absolutely violated in the mean time.
There’s another danger to depending on the courts as a backstop to catch stray bad laws. The practice allows politicians to avoid confronting bad ideas that are politically inconvenient to fight on the legislative floor. This is particularly a problem with conservatives, who can vote for egregious anti-choice laws for example in order pander to the anti-choice base voter with the assurance that the court will throw out the law thus saving them from the consequences of that vote.
Yeah, I think part of what I’m saying here is that they SHOULD face consequences. We shouldn’t depend on the courts at the expense of showing those politicians how angry those laws make us – ideally by voting out people who pass laws like those that restrict abortion and other rights.
Sadly, a sizable portion of conservative lawmakers vote in favor of deeply oppressive legislation with the conscious strategy of harvesting even greater support from the voters in their respective districts. They do this full well knowing the ensuing public controversy will earn them support from their constituents: legislative red meat for their horrid voter base.
We can thank gerrymandering for distilling down far too many voting districts into guaranteed white conservative majority geographic voting blocks: electoral games played with maps, demography, and statistical analysis.