Let The District Have It’s Segregation Law

What if Washington Post instead of publishing this editorial, had published this one, pretending for a second that the Heller case was not about guns, but about something else:

On Jan. 11, the DC Appleseed Center for Law and Justice filed a brief in the Supreme Court, asking the court to uphold the District’s segregation law in the case of District of Columbia v. Heller. Our brief was co-sponsored by the D.C. League of Women Voters, the D.C. Chamber of Commerce, the Federal City Council, DC for Democracy and the Washington Council of Lawyers.

All of these local organizations have one key interest in common: They believe that important public policy questions affecting District residents should be decided by local elected officials, not by the federal courts.

In Heller, the U.S. Court of Appeals for the D.C. Circuit struck down the District’s segregation law on the grounds that any law segregating blacks and whites is, necessarily, a violation of the Fourteenth Amendment’s equal protection clause. We believe this is wrong.

Nearly every state has a law dictating that blacks and whites must use separate facilities, such as public restrooms and drinking fountains. And those laws vary not only as to the kinds of places that are segregated, but where blacks may or may not go in many cases as well.

There are hundreds of state and local segregation laws. Each of those measures was enacted by local elected officials in response to local needs and desires. And each of those local governments is called on to balance people’s desire to not use the same facilities as blacks against the obligation to ensure blacks also have separate but equal facilities.

In the District — where race mixing is particularly acute — our elected mayor and council struck this balance by prohibiting blacks in certain public places for whites but permitting separate facilities for blacks. Congress could have overturned this decision, but it did not.

People in other parts of the country might have struck this balance differently. In fact, many jurisdictions have permitted blacks and whites to freely use the same facilities, and freely intermingle, when the District’s elected officials have not.

But the question is not what is the right policy for the District but who should make that policy. The standard the Supreme Court should apply in the pending segregation case is whether the District’s segregation law is reasonable. And “reasonable” means that the law is a reasonable public safety response to the city’s race problems, and protects residents’ right to separate, but equal facilities for the various races.

The plaintiffs in Heller would prefer a segregation law different from the one enacted by the D.C. Council. But the Supreme Court should not defer to the plaintiffs and use the Fourteenth Amendment as a vehicle for federal courts to micromanage race relations in this country.

Instead, as Justice Anthony Kennedy said in a case we quoted in our brief, local legislatures should be allowed to devise “various solutions” to local problems “where the best solution is far from clear.” That is what our mayor and council did. The Supreme Court should uphold their decision.

This country, thanks to the works of a certain man, that this day has been set aside in honor of, wisely rejected the notion that the federal government had no role to play when it came to ensuring equal protection under the law, and protecting fundamental rights of its citizens, all its citizens, regardless of state laws to the contrary.  Walter Smith should understand the dangers of reviving this kind of thinking where fundamental rights are concerned.  Sullying the constitution for the sake of local interests does not have a proud history and tradition in this country.  Let’s leave that practice in the past where it belongs.

Hat tip to War On Guns for the pointer.