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Equal, Not Separate By: Lowell Ponte
FrontPageMagazine.com | Wednesday, June 27, 2001

“AFFIRMATIVE  ACTION” WAS TORPEDOED AMIDSHIPS Monday by the U.S. Supreme Court.  The justices left standing a 5th U.S. Circuit Court of Appeals ruling that led the State of Texas to end official discrimination in admissions to its public colleges and universities.  Their action could mark the end of the literal Balkanization of the United States.

Since the 1960s the University of Texas law school had given “special consideration” to Black and Mexican-American applicants. This policy led to preferential admission of less qualified minority students over white students with higher grades and test scores.  The policy was rationalized as necessary to offset the effects of past segregation and  discrimination.

Lawyers for two “non-minority” applicants denied admission urged the Supreme Court to affirm what the Appeals Court had done to strike down racial profiling at the University of Texas.  “The [Appeals] court considered the…justifications that the law school proffered for its use of racial classifications,” wrote the attorneys, “and concluded that none of them was constitutionally adequate….”

The Constitution, after all, says each of us has a right to “the equal protection of the laws” (Amendment XIV) – and therefore to be treated equally by the government’s rules and laws. 

This does not mean that we are to be treated unequally by government as a way of achieving non-governmental kinds of equality – e.g., taxing some heavily while transferring the revenue to others to socially engineer equality of wealth.

Equality before the law is a cornerstone of our Republic.  The alternative is that we are not so equal, that the law deliberately tilts in favor of some and against others.

This doctrine of equality before law replaced an earlier kind of society where one set of rules applied to common people and a different set of laws governed aristocrats. 

It was once accepted that peasants and aristocrats were like two separate nations in the same land, each living under different laws. 

Equality before the law replaced this with a system in which, at least ideally, the “law is no respecter of persons.”  Its rules were to be the same for commoner and high born, rich and poor, with Lady Justice wearing a blindfold to differences of race, creed, gender, or color.

But today, in a thousand ways, we have been seeing the repeal of equality before the law. 

In Palm Beach County, Florida, an inmate at the county jail who says he is a Mohawk Indian has been allowed to smoke tobacco in a no-smoking facility.  Smoking tobacco is a sacrament in his Native American religious tradition, Stephen Locke successfully argued.

In like manner, Christian churches during Prohibition were granted a legal exemption to use sacramental alcohol, wine, in their services.  It is not recorded whether this boosted church attendance or whether the lack of hangovers from boozy Saturday nights brought fewer penitents to their knees at church on Sunday mornings. 

(And the Kennedy family, of course, derived part of its wealth from a special Federal permit during Prohibition to import “medicinal alcohol.”  The Kennedys used it to import and dispense many tons of “medicinal” Haig & Haig, White Horse, and Pinch Scotch from Scotland.)

The Native American Church is granted state and federal legal exemption from drug laws for its members sacramentally to use vision-inducing cactus buds, hallucinogenic peyote, in their ancient worship rituals.  In a case now before the courts in Utah, criminal charges have been brought against a leader of the Oklevueha Earthwalks Native American Church for distributing peyote to non-Indians.  His lawyer argues that many of the 1,800 chapters of the NAC allow non-Indians to be members.

These examples may seem unusual, but ponder what they mean for legal equality.  Smoking is being banned in more and more places – but if a smoker was born with the politically correct racial or ethnic background, he might be able to circumvent rules that continue to prohibit smoking by everybody else.

The same was true for alcohol during Prohibition, exempting you from the law if you shared the government-favored religion or political connections. 

And the same is true today for the federal drug laws and the Native American Church. But how odd it is that in a political system that invokes Jefferson’s idea of separation of church and state, the government in a Utah county wants to impose a racial standard to determine who is permitted to join a church.  No non-Indians need apply.  So is the real issue that Indians may use peyote but people of all other races are prohibited?

Likewise members of Santeria and other voodoo-related religions from the Caribbean seem to have de facto exemption from animal cruelty laws in Miami and New York City to practice the blood sacrifices of chickens and goats that are part of their faith.  If others did such things, they would be in jail.

The U.S. Supreme Court only weeks ago required the Professional Golfers Association to make accommodation for disabled golfer Casey Martin.  His lawyers argued successfully that to level the playing field, Martin should be permitted to traverse courses at pro tournaments using an electric golf cart.  The PGA could have truly leveled this field by letting all players use such carts, but it did not.  In future competitions Martin will ride while his rivals must walk (albeit with caddies doing their heavy lifting). 

Like you, I wait for the high court to rule that I must be made starting quarterback of my local NFL pro football team – and the highly paid star of the next Hollywood movie – and the singer whose songs must be played every hour on the local music radio station.  After all, why should folks like us be denied such opportunities merely because we can’t sing, act, or play major league football?  

And when is the high court going to rule that 53 percent of every professional sports team and military unit be women to match the proportion of females in our population?

That kind of rationale has been used to set racial quotas for college admissions and job set-asides, and this is what the U.S. Supreme Court torpedoed Monday.  Such racial profiling imposes lowered standards other than merit, and discriminates against and “disrespects” people of the unfavored race. 

And this neo-racism also leads to politicized results – as in Democrat-controlled California, where African-Americans aligned with the Democratic Party make up less than eight percent of the population but hold 11 percent of government jobs in what is clearly a racial spoils system to reward a political constituency.  (In California the prime victims of this Democrat discrimination are Asian-Americans and Latinos, shoved aside in a politicized racist system that Democrats have rigged to favor Blacks.)


As with the Martin PGA case, the U.S. Supreme Court vacillates around issues of equality and fairness.  Two cases are moving inexorably towards the high court from Michigan. One, last December, affirmed the University of Michigan’s race-based admission standard.  The other, last March, held that the University of Michigan Law School (Ann Coulter’s alma mater) affirmative action policy was vague and too weighted to admit students based on their race.

Pending appeal, the University of Michigan Law School is continuing to use its system of grading applicants on a 150 point scale, and giving Blacks, Hispanics, and American Indians 20 points automatically for their race.  This, Associated Press reported, is “equal to raising their grade-point average a full point on a 4-point scale.”  In other words, a Black applicant with a “B+” average by this stacking of the deck would be given preference over an Asian-American applicant with a straight “A” grade average.  By this week’s precedent, the U.S. Supreme Court should strike such racial favoritism down – but we have been surprised before.

In 1978’s Bakke decision, the U.S. Supreme Court remedied a case of discrimination in which a Jewish student had been denied school admission while less qualified minorities were admitted.  But the court then held that although racial quotas were unacceptable, race could be considered if some compelling government interest required it.  Most universities invoke the idea of creating a diverse student body and faculty as such a compelling interest.

But what is diversity?  The typical university today, as this column has argued before, considers itself diverse if its faculty includes a Black Marxist, a Lesbian Marxist, a Latino Marxist, and a transsexual Marxist.

As David Horowitz’s courageous campus tour to speak against reparations has been demonstrating, today you can look across the vast wasteland of higher education and only occasionally find actual diversity of thought and ideas.  It is an arid, reactionary wilderness in which politically correct conformity is imposed and the genuine diversity of individualism is an endangered species. 

Our universities were supposed to be hothouses in which a wide variety of exotic ideas could flourish, but the Left has turned today’s campuses into intellectual police states.

If we are no longer equal – and if in the name of social engineering those of certain racial and other groups are to be given preference over others – then the high court should at least order an end to subjectivity.   The U.S. Government should hire those folks from Apartheid South Africa whose job was to issue a race I.D. card to every citizen and put them to work issuing an official race identity card to each of us. 

As in Nazi Germany, your officially classified race could be the key to your education, job prospects, and survival.  As a member of an official Native American, you might be permitted to use peyote or build a gambling casino where those of all other races are prohibited. 

On June 15 in South Bend, Indiana, a three-judge panel of the 7th U.S. Court of Appeals ruled that the Miami Nation of Indians of Indiana “had ceased to be a tribe in any reasonable sense” and need not be recognized by the federal government, even though 4,700 Indiana Miamians are alive and well.  “Indian nations, like foreign nations,” ruled the court, “can disappear over time.”

Vice President Al Gore made a famous January 1994 gaffe, telling a Milwaukee audience that the American motto E pluribus unum meant “out of one, many.”  It means quite the opposite, “out of many, one,” but not to Al Gore and other divide-and-conquer Democratic politicians.  They have practiced giving special legal status and privileged benefits to people based on their race, ethnicity, gender, and gender preference. And thus our government has been spawning the equivalent of miniature foreign nations, each with its own separate laws and privileges in our midst.  This continues to Balkanize us into interest groups separated and pitted against one another by politicians, who favor their own constituencies at the expense of others.  Call me old-fashioned, but I prefer living under equal protection of the laws.

Mr. Ponte co-hosts a national radio talk show Monday through Friday 6-8 PM Eastern Time (3-5 PM Pacific Time) on the Genesis Communications Network. Internet Audio worldwide is at GCNlive .com. The show's live call-in number is 1-800-259-9231. A professional speaker, he is a former Roving Editor for Reader's Digest.

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