When Barack Obama takes the stage on January 20th to be sworn in as our 44th President, one of the two men he has invited to offer commemoratory prayers will know what it means for a member of the clergy to have his speech silenced by oppressive government action. That man will not be Rick Warren.
In his advocacy for California's Proposition 8 -- the ballot initiative that deprived millions of lesbian, gay, bisexual and transgender Californians of the equal right to enter into a civil marriage -- Reverend Warren argued that the measure was necessary to protect the free speech of conservative pastors. So long as the California Supreme Court's decision requiring equal treatment under the law remained on the books, he claimed, pastors could be prosecuted for hate speech if they preached against LGBT equality. That claim was flatly untrue. The Supreme Court has made it clear that any such prosecution would violate the First Amendment, and California authorities would never attempt such a thing. If they did, the supporters of LGBT equality that I know would be the first to object. As a political tactic, Warren's argument may have worked, but his freedom of speech was never threatened.
Reverend Joseph Lowery, however -- the man who will offer the benediction at President Obama's inauguration -- has a different story to tell. In one of the greatest free speech disputes in American constitutional history, New York Times v. Sullivan, Reverend Lowery experienced the full force of government power calculated to silence and oppress.
The Sullivan case began in Alabama in 1960, during the rising tide of the Civil Rights Movement, and it involved an attempt by Southern authorities to use libel laws to prevent outside newspapers from reporting on nonviolent resistance to Jim Crow segregation. As newspapers began to cover the protests or run advertisements decrying the persecution of Martin Luther King, Southern officials would seize upon minor inaccuracies in their reporting and bring crippling libel suits aimed at terrorizing the papers and preventing them from bringing national attention to the struggle. In Sullivan, this tactic was used against the New York Times, with an Alabama court awarding $500,000 to L.B. Sullivan, a Montgomery City Commissioner, for factual errors contained in an advertisement that the Times ran called "Heed Their Rising Voices" that did not even refer to Sullivan by name.
L.B. Sullivan sued four Alabama ministers in his $500,000 lawsuit in addition to the New York Times. One was Joseph Lowery. All were civil rights leaders whose names had been included in a long list of supporters in the advertisement. There was a tactical reason for suing the ministers -- it allowed Sullivan to keep his lawsuit in Alabama state court rather than federal court. But it was also meant to send a message. Reverend Lowery had been one of the leaders of the Montgomery bus boycott and co-founded the Southern Christian Leadership Conference with Dr. King. Northern newspapers were not the only ones that Alabama officials wanted to keep in their place with abusive lawsuits, and the courts of Alabama were happy to oblige.
History remembers New York Times v. Sullivan as a great victory for free speech. The case went all the way to the Supreme Court of the United States and, in 1964, the Court issued the landmark ruling that "debate on public issues should be uninhibited, robust, and wide-open" and that libel laws could not be used to stifle disagreement under our First Amendment.
What history often forgets, however, is the crucible that Reverend Lowery and the other ministers passed through for that victory. Before the Supreme Court intervened, Alabama authorities seized the ministers' property to satisfy the judgment. Lowery lost his car, and the ministers lived under the threat of state seizure for years until the Supreme Court finally provided vindication and their property was restored. Joseph Lowery had played a role in establishing the free speech rights of all Americans, including Rick Warren, but not without cost.
Every era has its civil rights struggles, and the struggle for LGBT equality is one of the great tests of our time. Rick Warren has chosen his role in that struggle, and history will judge the words that he uses in arguing that millions of Americans should not be full citizens. But the voice of Joseph Lowery is the one that matters. Reverend Lowery has fought for over fifty years to make this inauguration possible, and his message of freedom and equality embraces all Americans, including his LGBT brothers and sisters. When President Obama delivers his inaugural address, it is the example of Reverend Lowery that will inspire.