E-Mail This Article to a Friend The Brown-ing of America Decided in 1954, Brown v. Board of Education put the country on the road to true equality for all. As the Bay State prepares to recognize gay marriage, we’ll see how far we’ve truly come. BY HARVEY A. SILVERGLATE

SUPPORT FOR EQUAL application of the law runs deep in this country, if all too often it chafes against our demons. It’s an ancient principle, going at least as far back as the Old Testament injunction "Do not do unto others what you would not have them do unto you." It’s expressed in common discourse in any number of ways — "what’s sauce for the goose is sauce for the gander" comes to mind. It was trumpeted in the Declaration of Independence ("all men are created equal") and in the post–Civil War 14th Amendment ("No state shall ... deny to any person within its jurisdiction the equal protection of the laws"). And it’s enshrined in the English common-law system, which developed largely via "precedents." This meant that, unless it had been overruled by a higher court, a decision rendered by a court in, say, 1700 would have to be followed in subsequent years if a similar fact situation were to arise between different litigants.

But despite the hallowed place of equality in American law, applying its promise to each class of citizens who stake a claim for it has historically required intense struggle. Which is why, as Massachusetts prepares to extend the rights and obligations of marriage to same-sex couples on May 17, it is fitting to pay homage to Brown v. Board of Education, whose 50th anniversary will fall on the same day. On that day, in 1954, the US Supreme Court put an end to the system of legalized public-school segregation in the American South. In Brown, the court finally established the application of long-accepted notions of legal equality, previously accorded only to whites, to what was then known as the Negro race. More to the point here, Brown significantly advanced a legal trend toward equality under the law that culminated in giving gay citizens a right that straights have taken for granted since long before the founding of the republic. While each step in this legal odyssey did not make the next step inevitable, it did make it possible.

Just as some whites felt threatened by Brown’s extension of civil rights to racial minorities, some straights now fear their own marriages will be weakened or degraded by sharing the institution with same-sex couples. Such thinking assumes that rights are a zero-sum game, that only a limited quantity is available to go around. In fact, by their very nature, rights are most meaningful — and most secure — when they are universally applied and the entire society has a stake in protecting them.

IT MUST BE admitted that in Brown, the Supreme Court approached somewhat gingerly the question of whether black citizens were being treated in a manner inferior to that enjoyed by whites. The high court felt the need to rest much of its reasoning on then-modern social and psychological science, concluding that even if black schools enjoyed facilities and resources equal to those of white schools ("separate but equal"), the message of inferiority segregation sent to impressionable black children made the two races’ situations inherently unequal. "To separate [Negroes] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community," wrote the court, noting the progress made in our "psychological knowledge" of human behavior since the Supreme Court’s infamous 1896 decision in Plessy v. Ferguson, which established the "separate but equal" segregation standard for public accommodations. Instead of declaring Plessy in violation of the basic principles undergirding our legal, social, and moral institutions, the Brown court resorted to the convenient observation that unequal treatment didn’t disadvantage every citizen, but only those who would perceive such treatment as a sign of their own inferiority. Many legal critics of Brown have argued that this reasoning diluted the pure moral imperative of equality before the law.

Still, the power of Chief Justice Earl Warren’s opinion, written on behalf of a unanimous court, transcended the slippery resort to social science: "Separate educational facilities," he wrote, "are inherently unequal." This was so even if the "tangible factors ... have been equalized ... [in] Negro and white schools." True, it would have been better, and more forthright, to point out that segregation was an insult to members of all races, since the practice attacked the centrality of equality and dignity under the law, creating a precedent that could come back and bite any suddenly disfavored group in the society at some later time. Nonetheless, Brown significantly advanced the principle of equal protection, launching it on a course with unforeseen consequences.