Jim Crow and the Supreme Court

Thinking back, it's difficult to fully grasp that in America, from 1876 to 1965, racial segregation and its attendant prejudices were America's reality. Consider that in 1896 the Supreme Court in Plessy v. Ferguson upheld the constitutionality of state laws that called for separate public facilities, such as rest rooms, drinking fountains, seating areas, and schools. The doctrine was called "separate but equal."

The term "Jim Crow," referring to the laws of segregation, was first used in 1904 and originated, it's believed, from a caricature created by white actors in blackface, singing and dancing, the routine called "Jump Jim Crow."

Jim Crow laws to include de facto discrimination, both subtle and blatant, permeated all aspects of American life, even reaching as far as the disenfranchisement of blacks through the insidious use of poll taxes and literary tests.

Though Plessy v. Ferguson was finally repudiated in 1954 with the Supreme Court ruling in Brown v. Board of Education, thereby integrating public schools, the damage was done and the malevolent and injurious attitudes of prejudice and discrimination, constructed from the scaffolding of slavery, had become embedded not only in the South but throughout the nation. And even with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, change regarding race in our nation has been painfully slow.

In 1967, for example, a case was brought to the Supreme Court by Mildred Loving, a black woman, and Richard Loving, a white man. They had been sentenced to a year in prison in Virginia for marrying, thereby violating the state's anti-miscegenation statute, the Racial Integrity Act of 1924. The Supreme Court ruled, in Loving v. Virginia, that state statutes (not limited to Virginia) prohibiting interracial marriage were unconstitutional, saying that regardless of race, people had the right to marry the one they loved, and to prohibit them from doing so was a violation of their civil rights.

In retrospect, such statutes seem a chilling abuse of government power and represented an attempt to make de jure the repellent bigotry known as Jim Crow.

But that was then, we might say, and this is now. But is now so very different? Does there not exist today a form of Jim Crow discrimination as pernicious as that faced by the Lovings? Consider that 32 states (including Oregon) have, by constitutional amendment, banned same-sex marriage, denying gays the right to freely marry. A case in point would be California's passage of Proposition 8, which declared that only marriage between a man and a woman is valid. In 1996, Congress passed the egregious Defense of Marriage Act, defining marriage as the legal union between a man and a woman and thereby denying gays the federal rights of marriage (of which there are over 1,000), such as Social Security survivors' benefits.

What makes this a crossroads moment in the history of gay civil rights is that the Supreme Court will soon decide the constitutionality of DOMA and California's Proposition 8. With these cases, the justices have an opportunity to right two grievous wrongs and thereby restore, unequivocally, the civil rights of a minority. It is unclear whether this court will have the courage to do what was done in Loving v. Virginia and declare that for all states the right to marry is a civil right, protected by the Constitution.

The questions posed by the court to those attorneys who challenged DOMA and Proposition 8 as unconstitutional were not reassuring and raised a more fundamental question: Is there any separation between gay rights and that of Virginia v. Loving, or the Civil Rights movement of Martin Luther King? Both appealed for fairness and justice and equal opportunity. Both referenced the guiding principles of the 14th Amendment that states that we are all subject to equal protection under the law, regardless of gender, race, or sexual orientation.

Institutionalized bigotry, directed at lesbians, gays, bisexuals or those who are transgender, is as wrong as were the Jim Crow laws of past decades. And yet, we as a nation still seem incapable of viewing the absence of gay equality as an injustice that must be corrected. Now.

In 1967, for many Americans, the marriage of a white man to a black woman was unthinkable, even abhorrent. Today, for many, it is unthinkable that people of the same sex can fall in love and wish to marry, with all attendant rights.

No matter the elegant simplicity of the constitutional issues before the court, or the inherent moral imperative, it is possible that the justices will choose not to rely on the precedent established in Loving v. Virginia. And that they will, instead, parse what should be a sweeping decision, one that declares that the right to marry will apply to all Americans, without exception, regardless of geography.

Chris Honoré lives in Ashland.

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