Blacks, Gays, and Justice

On his long march for voting rights Dr. Martin Luther King said, “the arc of the moral universe is long. But, it bends toward justice.” Years later, justice hovers along that bend; but, beyond the reach of too many African-Americans.

Witnessing gay activists celebrate their legal victory was bittersweet for African-Americans left stunned by the 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,” couples made wedding plans, and television reporters interviewed a joyful Edith Windsor.

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. Although re-authorize by overwhelming numbers, Congress’ pre-clearance formula, Section 4 of the Voting Rights Act, was unconstitutional.

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. Dan White claimed Twinkie cupcakes and junk food caused temporary insanity.

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. He had written the opinion in Lawrence v. Texas outlawing gay sex.

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. He should know that White women have advanced using affirmative action. But, students of color are the targets of opponents.

Although Justice Clarence Thomas, the only African-American on the Court, and a direct recipient of affirmative action, would end the program altogether, Justice Kennedy had not appeared to be as conservative. It was Justice Antonin Scalia who called these legal rights and protections a “perpetuation of racial entitlement.”

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.

Gone is the memory of four little Black girls killed in their Alabama Church. Voting rights advocate Medgar Evers killed in front of his wife and children. Gone is the image of Vivian Malone defying George Wallace’s tirade of “segregation now, segregation forever” when she integrated the University of Alabama.

Much has changed for both African-Americans and gays since 1996 when DOMA first defined marriage. There are now three female justices including a Latina on the Court. An African-American Attorney General, Eric Holder, is married to the sister of Vivian Malone. Openly gay politicians, academics, journalists, actors join gay members of Wall Street and Main Street.

But, America is no racial utopia, given her racially motivated murders, voter suppression tactics, stop and frisk abuses, and discriminatory lending cases. I wrote about the unsolved murder of Marco McMillian, the first openly gay and Black politician in Mississippi. Mark Carson, openly gay, was killed in Greenwich Village in May.

Justice Ruth Bader Ginsberg, 80, deceivingly frail, quoted Dr. King at that end of her Voting Rights dissent. She said, ‘the arc of the moral universe bends toward justice” then she added –‘if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”

That arc of the moral universe still bends toward justice – for all; but, not today.
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Gloria J. Browne-Marshall, a writer covering the U.S. Supreme Court, is an Associate Professor of Constitutional Law at John Jay College in NYC, and author of “Race, Law, and American Society: 1607 to Present.”