In deciding the case of Brown vs. Board of Education in 1954, the Supreme Court, led by its newly installed chief justice, Earl Warren, concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place.”
Few words uttered by members of the United States Supreme Court have more profoundly shaped American society. The rejection of “separate but equal” marked the beginning of a redefinition of American race relations and inspired leaders of the civil rights movement. In the years since, the ideas of equality articulated by the Warren court have spread beyond the realm of race, becoming an organizing principle of American life.
Now these notions of equality have become central to the debate over gay marriage. As President Bush, San Francisco Mayor Gavin Newsom and the rest of the nation discuss the meaning of marriage and the government’s role in granting and protecting those unions, the influence of Warren, a former Republican California governor, over the discussion is profound and multifaceted. His legal, political and personal legacies all shadow the discussion.
Advocates of gay marriage equate their struggle with that of blacks in the 1950s, and though there are clear differences, there are parallels as well. Civil unions and domestic partnerships may provide near-equal benefits under the law, but they represent separate institutions from that of marriage. And separate, as the United States has come to recognize, generally has meant not equal.
In its Brown decision, the Warren court applied the concept only to racial segregation in schools. But its 1967 ruling in Loving vs. Virginia offers insight into how the Warren court might have considered gay marriage. In it, the court concluded that Virginia had the right to regulate marriage -- a marriage license is, after all, a state document, not a religious one -- but that its ban on interracial unions was invidious and unconstitutional.
In that case, the Lovings -- a mixed-race couple married in the District of Columbia who then moved to Virginia -- were sentenced to a year in prison for violating that state’s prohibition against blacks marrying whites (other interracial unions were permitted). They were allowed to suspend their sentences as long as they agreed to leave Virginia and not return for at least 25 years.
“Almighty God,” the trial judge in that case had declared, “created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Warren disagreed. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state,” he wrote for the unanimous court.
What, then, of gays who choose today to exercise the freedom that the Warren court extended to blacks and whites -- the right to marry one another? Some of the 3,000-plus couples married in San Francisco in recent weeks could soon find that their unions are not recognized or are criminalized by states that refuse to honor them -- just as Virginia and 15 other states prior to the Supreme Court’s action refused to recognize interracial unions.
Although Warren and his court never considered gays marrying, they spoke with clarity about separate institutions, which they viewed with deep suspicion and intervened to break down.
Since then, institutions that separate by race or gender or any other criterion of birth have dwindled to a steadily declining sliver: There are men’s and women’s restrooms and a few single-gender schools, but the areas of formal separation are few and far between. That reflects the bent of the Warren court and the way in which its work has been embraced.
One telling sign of the acceptance of the Warren view of separation, for instance, involves the role of local officials in the debate over gay marriage. In 1953, when Warren joined the Supreme Court, the justices were faced with state and local governments -- governors, mayors, school boards and legislatures -- that stood in the way of expanding liberty. Individuals -- the Browns, the Lovings -- came to the courts for protection because their elected leaders would not provide it.
Today, it is the government of San Francisco that pushes to enlarge liberty, and individual plaintiffs who ask the courts for protection from the perceived dangers of gay marriage. That shift, from the state as defendant to the state as advocate, reflects the deeper, more psychological influence of the Warren court on the nation: Before Warren, separation was presumed and equality suspect. Warren reversed that burden. Now those who argue against gay marriage, as those who champion separation in any sphere of life, bear the burden of explaining why it is justified in a society that values equality above almost all else.
Bush addressed that burden by invoking marriage’s “cultural, religious and natural roots.” That is a far gentler evocation of religion than that used by the judge who sentenced the Lovings to prison for miscegenation. But Bush’s statement makes clear that he too finds support for separation in religious doctrine.
Today, few people of any political or religious bent argue for the reimposition of state-mandated racial segregation. At first bitterly contested -- far more bitterly, incidentally, than gay marriage -- racial integration has gradually become an accepted American value, while those who argued for separation of the races have been marginalized.
The president and his supporters draw a new line at gay marriage and take special pleasure in blaming “activist judges” for the turmoil over what marriage means.
“Activist courts,” the president said, “have left the people with one recourse. If we’re to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.”
Activist judges are a particularly appealing foil -- unelected, they appear undemocratic. And Bush is right that judges in Massachusetts forced that state to recognize gay marriage there.
But it was a newly elected mayor, Newsom, who ordered city officials in San Francisco to issue marriage licenses to gays. And it was an elected Republican county clerk in New Mexico, unprompted by the courts, who began issuing marriage licenses there. Judges had nothing to do with their actions.
Warren was an activist judge, unapologetically willing to impose justice as he saw fit. Supreme Court Justice Antonin Scalia, a favorite of the president, is an activist judge, willing to overrule elected officials and judicial precedent in order to achieve justice as he sees it. The mayors and other local officials who are leading the push to legalize gay marriage are not judges at all, nor are they implementing judges’ orders.
The charge of judicial activism in the case of gay marriage is at best a red herring, at worst a deliberate feint -- an attempt to fight out “separate but equal” with the Warren court rather than with the parties actually engaged in this debate.
In fact, the San Francisco judges who have heard the case so far have done what Republicans often ask them to do -- deferred to the executive branch of government. Which, in this case, means allowing gays to marry. And yet, as the case unfolded in San Francisco, there was still another echo of Warren, a reminder that even with his legacy of rules in matters of privacy, free speech, police interrogations, right to counsel and voting, his influence over the United States today is personal as well as judicial and political.
The judge who heard the initial arguments in the gay marriage case in San Francisco is Superior Court Judge James Lee Warren. Those fighting the city’s decision to issue marriage licenses to gays, last week exercised their right to remove a single judge from the case. They used it to strike James Warren.
He is Earl Warren’s grandson.