E-Mail This Article to a Friend The Brown-ing of America (continued)

TODAY, CONSERVATIVE US Supreme Court justice Antonin Scalia is much exercised over those consequences, even though he, too, has proclaimed his deep commitment to equal legal treatment. In a recent profile of Scalia, New York Times legal reporter Adam Liptak recounted the justice’s own description of the principle’s crucial influence on his legal philosophy: "Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions — no television in the afternoon, or no television in the evening, or even no television at all," Scalia, the father of nine children, told an audience at a 1989 lecture at Harvard. "But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed."

But apparently, Scalia’s love of equality has severe limits, as indicated by his reaction to Lawrence v. Texas, in which the court struck down laws criminalizing gay sex. Rather than celebrate the expansion of equality under the law, Scalia warned his fellow justices, and everyone else, that gay marriage was the inevitable next threat — right around the corner — to heterosexual hegemony. Scalia, a Roman Catholic whose co-religionists in this country suffered vicious prejudice for centuries before Catholics came into their own with the election of John F. Kennedy in 1960, decided that the equality his children demanded when watching television and that Catholics demanded in civic life should not be accorded gay citizens who wanted to make love and get married. (A similar blind spot seems to have prompted Boston’s Black Ministerial Alliance to protest against linking the great civil-rights struggle of the ’50s and ’60s with the signature civil-rights issue of this decade — seeking legal equality for socially disfavored sexual orientations.)

In his vigorous dissent from the 6-3 Lawrence majority, Scalia inveighed against how the court’s decision to legalize homosexual sodomy made gay marriage inevitable: "At the end of its opinion — after having laid waste the foundations of our rational-basis jurisprudence — the Court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Do not believe it." Scalia was technically wrong, in that the majority’s ruling that lovemaking was a fundamental human right beyond the state’s power to outlaw it did not necessarily mean that the state would then have to recognize legal marriage between gays. However, his intuition was partly correct, since in order for gay marriage to gain traction, surely the notion that gay people are entitled to engage in carnal love must be established first. Gay sex may not require recognition of gay marriage, but gay marriage does require recognizing the legality of gay sex.

The Supreme Judicial Court of Massachusetts took up this judicial baton and ran with it last November in Goodridge v. Department of Public Health. By a 4-3 vote, the SJC ruled that opponents of gay marriage had not put forth a rational argument for outlawing such relationships. The state "has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex," Chief Justice Margaret Marshall wrote, and the irrationality of the arguments against gay marriage "suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual." While the SJC did note that the ban on gay marriage imposed "an official stamp of approval" on negative stereotypes of gays, the court focused most heavily on the fundamental nature of the right to marry: "Without the right to marry — or more properly, the right to choose to marry — one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed commitment to an intimate and lasting human relationship.’" Like the US Supreme Court in Brown, the SJC in Goodridge noted the message of inferiority conveyed to gay citizens. But the SJC went beyond the narrower confines of sociological and psychological analysis to hold that where fundamental human rights and intimate relationships are at stake, all citizens must be treated equally under the law, period.

Despite its partially flawed analysis, Brown made clear that separate is inherently unequal and therefore utterly unacceptable in American civic life. If it were discovered today, as a result of psychological and sociological research, that some black students actually do better in segregated schools than in integrated ones — something quite possible among a percentage of students who choose historically black colleges and universities over primarily white integrated schools — it would still be unconstitutional to force black students to attend "separate but equal" black public schools. Brown significantly advanced the nation along the road to recognizing the humanity and dignity of every human being. In this, it was a singular achievement, even if its goals have not been wholly realized in our still-troubled society. For blacks, women, gays, and ultimately all Americans, it dramatically furthered human equality and liberty. For this reason it merits our attention and our thanks on this, its 50th anniversary.

Harvey A. Silverglate can be reached at has@harveysilverglate.com. Carl Takei assisted with this piece.