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Cowardly Court: Where’s Our Gay Marriage ‘Masterwork’?

Posted on Apr 8, 2013
AP/Chris Park

By Bill Boyarsky

In 1953, Supreme Court Justice Robert Jackson opposed school segregation but worried that the court, in ordering integration, would be imposing revolutionary change by “judicial fiat.” His young law clerk rejected his boss’ caution and told him, “If you are going to reach the decision ... you should not write as if you were ashamed to reach it.”

The exchange showed how much both men were aware of the political, legal and emotional currents swirling around one of the most important judicial actions in American history. Their feelings are relevant today as the Supreme Court considers another matter of great historical importance, same-sex marriage.

As the Los Angeles Times’ Jim Newton relates in his superb biography “Justice for All: Earl Warren and the Nation He Made,” Jackson put his worries aside, listened to clerk E. Barrett Prettyman and with pride joined in the unanimous vote for the Brown v. Board of Education decision, written by Chief Justice Warren, that banned segregated schools.

“A masterwork,” is how Jackson described Warren’s clear and powerful words: “We conclude that in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.” Suffering from a heart ailment, Jackson rose from his hospital bed so he could vote.

Jackson’s transformation from worrying to enthusiasm is an example to be followed by current Supreme Court justices who may be sympathetic to gay, lesbian and transgender rights as they consider the same-sex marriage cases. Nobody will know for sure until the decisions are announced in June, but there may be a majority of five supportive of strong action.


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The parallels are striking. Then, as now, attitudes were changing although, as Newton notes, “not without difficulty.” Jackie Robinson became a Brooklyn Dodger in 1947 and despite having to fight incredible racism from players and fans, was named baseball’s rookie of the year. Warren, then California’s governor, was a dedicated baseball fan. He welcomed the hard-won success of Robinson, a fellow Californian who studied at UCLA, part of the same UC system that produced Berkeley grad Warren. In 1948, President Harry Truman signed an executive order that integrated the armed forces, although slowly. Two years later, Ralph Bunche became the first African-American to win the Nobel Peace Prize for his work on a Middle East peace settlement.

“And yet those signs of progress were sometimes hard to spot on the landscape of American racism in the 1950s,” Newton wrote in his Warren biography.

Opposition to Brown was fierce. As a result, the court, when it wrote a decree on enforcement of Brown, said it should proceed “at all deliberate speed” and left enforcement up to district judges.

It went slowly. And the court refused to step into another area, interracial marriage. Han Say Naim, a Chinese man, and Ruby Elaine Naim, a white woman, had wed in North Carolina, where their marriage was legal, but moved home to Virginia, which had a law against interracial marriage. The Virginia Supreme Court ordered the marriage dissolved. Mrs. Nain appealed and the case ended up before the Warren court in 1955.

To Warren’s great disgust, the court declined to take the case and the Virginia law remained on the books until Richard Loving, a white man, married Mildred Jeter, a black woman, and their marriage, performed in the District of Columbia, was invalidated in Virginia, where they were sentenced to prison for miscegenation. The sentence was suspended after they agreed to leave the state, but in 1963 they sued to overturn their conviction.

When the case arrived at the Supreme Court in 1967, the justices were no longer the nervous nellies of the post-Brown days or the Naim case. In a unanimous decision, Warren wrote, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed upon by the state.”

It took a dozen years for the court to declare that the Constitution does not bar interracial marriage, a dozen years of justices looking over their shoulders at public opinion.

Now even justices who are perceived to be sympathetic to gay marriage are exhibiting the same sort of caution as they consider cases overturning California’s Proposition 8, banning same-sex marriage, and the Defense of Marriage Act, depriving same-sex married people of federal benefits.

Let’s not get ahead of public opinion, they seem to be saying.

Justice Sonia Sotomayor, assumed to be sympathetic to same-sex marriage, seemed to be concerned with this during oral arguments on the California case when she said, ” If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer? We let issues perk and so we let racial segregation perk for 50 years to 1954.” Another justice perceived to be friendly to same-sex marriage, Ruth Bader Ginsburg, has worried about a backlash. Declaring—wrongly—that Roe v. Wade touched off an anti-abortion backlash, she said in a speech at Columbia Law School last year that although the ruling was not wrong, “it moved too far, too fast.”

Such timidity raises the question of whether the court will come out with a limited decision approving same-sex marriage in only the nine states where it is now legal. A gutless action such as this has no place in the high court’s deliberations on marriage. As the Warren court did with interracial marriage in the Loving case, the justices should clearly and courageously affirm the legality of same-sex marriage in every state.

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