The Warren vs Roberts Courts: Separate and Unequal Views on Marriage Equality

06/28/2015 01:51 pm ET | Updated Jun 28, 2016

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Chief Justices Earl Warren (left) and John Roberts

The Supreme Court's ruling Friday to legalize same-sex marriage is a victory for human rights and an occasion to rejoice. The decision follows in the footsteps of the Supreme Court's 1967 decision in Loving v. Virginia that outlawed states' bans on interracial marriage, an earlier pathbreaking victory for marriage equality.

But there is a huge difference in the two rulings. The Loving decision on inter-racial marriage was unanimous. Friday's ruling on same-sex marriage was a 5 to 4 decision. We should not forget that four members of the nation's highest court -- Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas -- opposed marriage equality. Each had his own reasons to justify his vote to himself and to the public, but history will record that all four of them supported state's rights over equal rights, bigotry over tolerance. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Anthony Kennedy (who was the swing vote and who wrote the majority decision) will be remembered for embracing the notion that that marriage is a matter of personal choice.

How do we explain the difference in these two rulings? Friday's decision certainly reflects the increasing partisanship and polarization of American politics. But they also reflect differences in the court's leadership then and now.

The Supreme Court that decided the Loving case was hardly a group of similar thinkers. It included a moderate Republican (Chief Justice Earl Warren), two conservative Republicans (John Harlan and Potter Stewart), a moderate Democrat (Byron White), and two Southern Democrats (former KKK member Hugo Black of Alabama and Tom Clark of Texas), as well as three solid liberal Democrats (William Douglas, William Brennan and Abe Fortas).

The Loving v Virginia ruling was particularly bold because, at the time, public opinion was overwhelmingly against inter-racial marriage. In the 1950s, half the states still had laws prohibiting interracial marriage. According to the Gallup Poll, in 1958, 94 percent of Americans were against marriage between whites and blacks, while only 4 percent said they approved. By 1967, when the Supreme Court knocked down state anti-miscegenation laws everywhere, 16 states still had such laws on the books. Gallup didn't conduct a poll on the issue that year, but the following year, 73 percent of Americans still disapproved of inter-racial marriage, while 20 percent approved. It wasn't until the 1990s that a majority of Americans told pollsters they supported inter-racial marriage.

One could not have predicted from the make-up of the court that all nine of the justices would embrace equal rights over states rights. What led the Supreme Court in 1967 to be so far ahead of public opinion?

The Warren Court's 1954 Brown v Board of Education ruling, outlawing school segregation, had triggered a white backlash in the South, galvanizing a resistance movement and a revival of the Ku Klux Klan and other hate movements, with the Confederate flag its symbol of defiance, and the use of vigilante tactics -- including bombings, lynchings, and other forms of violence -- to oppose racial integration and equality. Warren became a hated figure among segregationist, who waged a campaign for almost two decades calling for impeachment. At the time, Southern racists used the idea of "states' rights" to defend Jim Crow laws, including school segregation, racial discrimination in restaurants and buses, severe limits on voting by African Americans, and bans on interracial marriage.

But the Brown ruling had also spurred a new wave of courageous civil rights activism, beginning with the 1955 Montgomery bus boycott, the 1957 desegregation of Little Rock, Arkansas' schools by brave black children, the lunch counter sit-ins that began in 1960 in Greensboro, N.C., the Freedom Rights, and the courageous voter registration drives sponsored by the NAACP and the Student Nonviolent Coordinating Committee (SNCC). Civil rights activists put their bodies and their lives on the line. Many were injured, and some were killed, by racist thugs who were part of, and/or inspired by, the organized hate groups like the KKK and the White Citizens Councils.

In 1964, Congress passed the Civil Rights Act. The next year, following the civil rights marches in Selma, Alabama, President Lyndon Johnson -- a Texas native who had been, at best, a moderate on racial issues -- addressed Congress and urged it to pass the Voting Rights Act, ending his speech with the phrase "we shall overcome." Later that year, Congress enacted that historic law.

The civil rights movement had stirred the nation's conscience about racial injustice. In deciding the Loving case, the justices no doubt recognized that, despite the fact that most white Americans still opposed interracial marriage, the tide of history was turning, and they wanted to be on the right side.

But do not underestimate the influence of one man, Chief Justice Earl Warren, in forging the unanimous Loving decision. Warren was not a great legal scholar, but he was a brilliant politician, whose views on race and civil liberties had evolved over the years. As California's Attorney General, he had played a key role in detaining Japanese Americans during World War Two on the grounds that they posed a security risk as potential spies and saboteurs. Only in retirement did he acknowlege that the relocation was a mistake based on hysteria. When President Dwight Eisenhower appointed Warren -- who had been the Republican governor of California and the GOP's Vice Presidential nominee in 1948 with running mate Thomas Dewey -- he thought he was naming a conservative to nation's highest court.

Warren joined the court just before it heard new arguments in the Brown case. Knowing that the decision would be politically controversial, Warren sought a unanimous decision. He assigned the job of writing the opinion to himself, and then, like a shrewd politician, he met with each of his eight colleagues separately and listened to their views in order to construct a decision that they could all agree on. After he brought the last holdout, Justice Stanley Reed, on board, Warren drafted the ruling. He wrote:

"We cannot turn the clock back. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws."

The Warren Court subsequently issued liberal rulings in other civil rights cases, but the Loving case promised to be as controversial as the Brown ruling. As with the Brown case, Warren believed that the nation needed to see the Supreme Court united on this potentially explosive issue.

The case was filed by an interracial couple -- Mildred Jeter Loving, a black woman, and Richard Loving, a white man -- who lived in Central Point in rural Virginia. The Lovings were a humble working-class couple who simply wanted to live as husband and wife and raise their three children in Virginia, where they were born and where they and their extended families lived.

In June 1958, they drove 90 miles and got married in Washington, D.C., to circumvent Virginia's Racial Integrity Act of 1924, which made interracial marriage a crime. The local police raided their home at night, hoping to find them having sex, which was also a crime in Virginia. The cops found the couple in bed. Mrs. Loving showed them their marriage certificate on the bedroom wall. That was used as evidence that they had violated Virginia's law. The Lovings were charged with "cohabiting as man and wife, against the peace and dignity of the Commonwealth."

In his ruling, Leon M. Bazile, the Virginia trial judge wrote:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

On January 6, 1959, the Lovings pled guilty and Bazile sentenced them to one year in prison. The judge said he'd suspend their sentence if they agreed to leave the state for 25 years. They agreed and moved to Washington, D.C.

In November 1963, the Lovings filed a motion in the state trial court to reverse the sentence on the grounds that it violated the Constitution's 14th Amendment. It took four years to reach the U.S. Supreme Court.

When it did, Warren again used his political skills to push for a unanimous verdict.

It was certainly, in today's parlance, no slam dunk. Five of his Supreme Court colleagues had been appointed by Democratic presidents -- Douglas and Black by Franklin Roosevelt, Clark by Harry Truman, White by John F. Kennedy, and Fortas by Lyndon Johnson -- but they espoused different views on a variety of legal and social issues.

As Southern Democrats, Black and Clark understand how explosive the Loving case would be. Black, who had represented Alabama in the U.S. Senate from 1927 to 1937, no doubt felt guilty for his racist past. In 1926, running for the Senate, Black joined the Ku Klux Klan, thinking that he needed the votes of Klan members. He spoke at Klan meetings, espousing anti-black and anti-Catholic views. Near the end of his life, Black would admit that joining the Klan was a mistake, but he went on to say "I would have joined any group if it helped get me votes." In 1929 Black wrote to a constituent denouncing an inter-racial marriage in New York, observing that "New York State should have a law prohibiting this sort of thing," according to Roger Newman's Hugo Black: A Biography. In the Senate, Black was an ardent New Dealer, but hardly a progressive on racial issues. He consistently opposed the passage of anti-lynching legislation. In 1935, for example, he lead a filibuster of the Wagner-Costigan anti-lynching bill.

Clark, a Texan, was an assistant to U.S. Attorney General Biddle when the Japanese attacked Pearl Harbor in 1941. Biddle named Clark to be Civilian Coordinator of the Alien Enemy Control Program. He worked with General John DeWitt and then-California Attorney General Earl Warren to evacuate Japanese Americans from military areas, which eventually (after Clark was reassigned to Washington in May 1942) led to their forcible relocation to prison camps. Like Warren, Clark later acknowledged that the government's relocation program was a mistake. Appointed Attorney General by Truman in 1945, Clark helped formulate and carry out Truman's aggressive Cold War anti-communist policies, including requiring federal employees to sign loyalty oaths and creating a list of so-called "subversive" organizations that were used by witch hunters to blacklist liberals and radicals. But Clark also played a key role in supporting Truman's civil rights efforts. He filed a brief in the landmark (and controversial) Shelley v. Kraemer case which, in 1948, struck down racial covenants in housing contracts restricting the sale of property to blacks. He also helped oversee Truman's civil rights committee that released an important report, "To Secure These Rights," which made 35 recommendations, including ending segregation, elimination of poll taxes, enactment of a law to protect voting rights, and creation of a civil rights division at the Department of Justice.

Three of Warren's Supreme Court colleagues -- Harlan, Brennan, and Stewart -- had, like Warren, been appointed by Republican President Dwight Eisenhower. Harlan was generally a conservative jurist but he often voted in favor of civil rights; in this he was similar to his grandfather and namesake, who was the only dissenting justice in the landmark Plessy v. Ferguson case which, in 1896, upheld the constitutionality of state laws requiring racial segregation under the doctrine of "separate but equal." But Harlan was the lone dissenter in the 1964 Reynolds v Sims decision, which established the principle of "one man, one vote" to ensure equal protection under the Fourteenth Amendment. In 1956, Eisenhower appointed Brennan -- who New Jersey's Republican governor had appointed to that state's court -- for purely political reasons. Brennan was a Democrat and a Catholic and Eisenhower, who was running for re-election, wanted to appeal to both groups. Only one Senator, Republican Joe McCarthy of Wisconsin, voted against Brennan's confirmation. Stewart was from a prominent conservative Republican family in Ohio and was often a dissenter on the Warren court, but in 1965, in Shuttlesworth v. City of Birmingham, Stewart was in the majority that ruled that police could not use an anti-loitering law to keep civil rights workers from standing or demonstrating on a sidewalk, a clear victory for the civil rights movement.

As he had done in the Brown ruling thirteen years earlier, Warren penned the opinion for the court. Noting that the Virginia law endorsed the doctrine of white supremacy, he wrote:

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The Supreme Court had spoken, but public opinion, particularly in the South, lagged behind. In 1969, members of Georgia's state legislature and Board of Regents objected to hiring former Secretary of State Dean Rusk to a teaching job at the University of Georgia because he had participated in his daughter's wedding to a black man. Although the Loving ruling invalidated state laws banning inter-racial marriage, many Southern states were slow to erase their own laws. South Carolina didn't repeal its law until 1998; Alabama didn't do so until 2000.

Reread Warren's words. Then substitute same-sex marriage for interracial marriage and see if his views are any less compelling. Most Americans would now agree that to deny gays and lesbians the right to marry is, as Warren put it, "directly subversive of the principle of equality at the heart of the Fourteenth Amendment."

Indeed, the Loving case helped lay the foundation for the dismantling of state bans on same-sex marriage.

In June 2007, on the 40th anniversary of the case that bore her name, Mildred Loving issued a statement that said:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

Public opinion on gay marriage has shifted much faster than it did on inter-racial marriage, according to surveys by the Pew Research Center and the Gallup Poll. In 1996, only 27 percent of Americans believed it should be legal for gay and lesbian couples to marry, Gallup found. Ten years later, it had increased to just 37 percent. Today, however, that number has increased to 60 percent, an all-time peak. Moreover, support for gay marriage is much higher among younger Americans. Pew found that among Millennials (Americans between 18 and 39), 73 percent endorse gay marriage. Support has also been increasing among older Americans. Among baby-boomers (those who are now between 51 and 69), support for same-sex marriage has increased from 32 to 45 percent since 2001.

When children born this year reach voting age 18 years from now, they will surely wonder how it was even possible that America once deprived gays and lesbians the right to marry. They will take same-sex marriage for granted.

Homophobia has not disappeared, but the gay rights movement has clearly won most Americans' hearts and minds. The tide has turned. Opponents can try, but they can't push it back.

But four members of the current Supreme Court are stilling trying to do so. Among the five justices appointed by Republican presidents, only Anthony Kennedy, a Reagan appointee who is often the court's swing vote, has evolved with the times.

Unlike their counterparts on the 1967 Warren Court who unanimously ruled for marriage equality in Loving v Virginia, the other four GOP appointees -- Scalia (appointed by Reagan), Thomas (appointed by George H.W. Bush), and Roberts and Alito (both appointed by George W. Bush) -- are locked into their personal and ideological positions. They don't seem to care about being on the wrong side of history.

Peter Dreier is professor of politics and chair of the Urban & Environmental Policy Department at Occidental College. His most recent book is The 100 Greatest Americans of the 20th Century: A Social Justice Hall of Fame (Nation Books, 2012).