Are the Brown Case Similar to the Gay Marriage Case?

Bob Egelko, in the San Francisco Chronicle (May 17, 2004):

Fifty years to the day after the U.S. Supreme Court outlawed school segregation, another court ruling will allow same-sex couples to marry in Massachusetts today.

There are many differences between Brown vs. Board of Education and Goodridge vs. Department of Health Services - for one, gays and lesbians have not faced the same historic level of discrimination as African Americans - but the two cases have more in common than a date.

Both the nation's high court and the Massachusetts Supreme Judicial Court used their constitutional power to protect a politically weak minority from state laws that the justices considered discriminatory, directing legal and societal changes from the bench that would not have happened in a state legislature.

In the intervening decades, the U.S. Supreme Court has followed much the same path in rulings that legalized abortion and interracial marriages, outlawed organized school prayer, suspended the death penalty nationwide from 1972 to 1976 and required police to tell suspects of their right to remain silent and consult a lawyer. Last year, the court overturned state laws against consensual sodomy, a ruling that laid the groundwork for the Massachusetts decision on same-sex marriage.

Following the Supreme Court's lead, lower courts have taken control of prisons and mental hospitals after finding that the state was failing to protect inmates, another vulnerable group, from abuse.

The model for each case was Brown, which set a modern precedent for the judiciary as the guardian of rights - some constitutionally specified, some not - for the outcast, the downtrodden and the unpopular. The extent to which courts can, and should, perform that role remains a topic of hot debate.

"When the court advances liberty or equality in a way that the legislature won't, I think the court's performing its highest mission," said University of Southern California Law Professor Erwin Chemerinsky. "I believe that the courts make a positive difference in society."

To take two prominent examples, he said, abortion was illegal in 46 states on the day before Roe vs. Wade was decided in 1973, and legal in all 50 states the day after; private homosexual conduct was illegal in 13 states before the Supreme Court struck down those laws last year.

But John Eastman, law professor at Chapman University in Orange, said courts raise questions about judicial legitimacy when they second-guess elected lawmakers - particularly on subjects that are not mentioned in the Constitution, like abortion and gay rights.

Even in the Brown case, whose equal-protection rationale he supports, Eastman said the court should have confined its ruling to individual students and districts and left broader changes to the democratic process, where they would have been "longer lasting and more stable."

Such critiques are not limited to conservatives like Eastman. Liberal scholar Mark Tushnet's 1999 book, "Taking the Constitution Away From the Courts," advocated relying on political rather than judicial action to protect individual rights. And University of Virginia Law Professor Michael Klarman argues that rulings like Brown and the Goodridge decision in Massachusetts often backfire.

"By outpacing public opinion on issues of social reform, such rulings mobilize opponents, undercut moderates, and retard the cause they purport to advance," Klarman said in a recent law review article. "... In the short term, Brown retarded progressive racial reform in the South" by generating a fierce backlash, and Goodridge appears to be having the same effect, he said.

Brown-style activism on behalf of minorities has been rare in Supreme Court history. A different kind of activist court overturned minimum-wage laws and other economic regulations on property-rights grounds early in the 20th century, relenting in the late 1930s only after President Franklin Roosevelt proposed his court-packing plan to appoint additional justices.

The court laid the groundwork for the modern era with a famous footnote in a 1938 case suggesting that minorities who were not protected by the political process were entitled to special constitutional status. It took another 16 years, a procession of new justices and a wave of social changes to turn the judicial theory into dramatic reality.

Klarman attributed the Brown ruling to developments outside the court: World War II's effect on racial attitudes, a rise in African American political power and the growth of a black middle class, and Cold War politics, which made Southern white supremacy an international embarrassment.

"The justices in Brown did not think they were creating a movement for racial reform; they understood that they were working with, not against, historical forces," Klarman wrote, adding that the civil rights movement was the chief catalyst for change.

Other commentators said the court deserves more credit. Pulitzer Prize-winning historian David Garrow called the Brown ruling "a huge motivating, encouraging force" for such watershed events as the Montgomery bus boycott of 1955-56 and the sit-ins of the early 1960s. USC's Chemerinsky said the ruling ultimately doomed Southern segregation in all walks of life and represented a triumph for the court's power to subject laws to constitutional review.

Fast-forward a half-century. Today's Supreme Court is arguably as activist as the court that decided Brown, usually in another direction - overturning federal disability-rights and gun-control laws in the name of state autonomy - but occasionally in decisions reminiscent of the earlier court, like last year's ruling overturning state sodomy laws.

Courts in some states, like Massachusetts, are taking the lead in expanding constitutional protections - perhaps following the path of the California Supreme Court, which defied public opinion and decades of precedents by overturning a ban on interracial marriage in 1948, 19 years ahead of the U.S. Supreme Court.

Both sides of the same-sex marriage issue are preparing for crucial tests on opposite coasts: in California, where the state Supreme Court hears arguments May 25 on the legality of same-sex weddings in San Francisco, and in Massachusetts, where the state court's ruling allowing gay marriages to begin on Monday could be undone by a 2006 ballot measure.