Witnessing gay activists celebrate their legal victory was bittersweet for African Americans left stunned by the U.S. Supreme Court’s two civil rights decisions. I struggled through the crowded Supreme Court plaza as the Gay Men’s Chorus of Washington, D.C. sang “America” and couples made wedding plans.
Perhaps it is selfish to ask gay rights leaders to acknowledge a civil rights defeat even while celebrating their well-earned victory. But, throughout their case, gay rights activists had argued that their right to marry was like Loving v. Virginia, the inter-racial marriage case. Their second-class treatment was like Plessy v. Ferguson, the racial segregation case. Their attorney, Ted Olson, was heralded as another Thurgood Marshall.
Now, civil rights activists were left assessing damage and developing strategies. Within 48 hours, the U.S. Supreme Court had gutted the Voting Rights Act of 1965 and rejected affirmative action as discriminatory to white applicants. Colleges must now find a race-neutral solution to the race-based problem of diversity in education.
Disappointed civil rights groups had hoped Justice Anthony Kennedy would support legal protections for African Americans as well as gay marriage. Appointed by President Ronald Reagan, Justice Kennedy is known for his ability to swing between conservative and progressive issues. He explained how the Defense of Marriage Act (DOMA) deprived gays of Federal benefits by illegally defining marriage as only between a man and a woman.
Justice Kennedy, a California lawyer and judge during the high mark of gay activism, may have less personal experience with racial justice struggles. He probably knew of gay rights activist Harvey Milk who began by fighting injustices in Greenwich Village, NYC, before moving to San Francisco.
Milk was elected to the San Francisco Board of Supervisors becoming one of America’s first openly gay politicians. In 1978, the nation was shocked when Harvey Milk was assassinated, along with Mayor George Moscone, by Dan White, a conservative.
Judge Kennedy must have witnessed the San Francisco riots following White’s mere six year sentence for killing both Milk and Moscone. He witnessed the inequality suffered by gays in California. Defeating DOMA meant Justice Kennedy could right that wrong.
But, then, as a long-standing professor at McGeorge Law School, Justice Kennedy should also know the difficulties in achieving classroom diversity without affirmative action.
Blood was shed to gain voting rights. When the Court rejected the formula by which states had to prove their voting laws were fair, it wiped away that bloodline. Gone is the memory of voting rights volunteer Viola Liuzzo killed in Alabama; three college students killed in Mississippi. Gone is the sacrifices of Harry and Harriette Moore killed in their Florida home on Christmas Day.
Gloria J. Browne-Marshall, a writer covering the U.S. Supreme Court, is an associate professor of Constitutional Law at John Jay College.
