To this, then, as our solemn, sacred duty do we, the living, now dedicate ourselves, to the right of Protestants, Catholics and Jews, of white men and Negroes alike, to enjoy the democracy for which all of them have here paid the price.
The author of the Brown decision, Chief Justice Earl Warren, reflected some eighteen years after the 1954 judgment:
[The reversal of race relation policies in the United States] was fostered primarily by the presence of [World War II] itself. First, the primary enemy of the Allies, Nazi Germany, was perhaps the most conspicuously and brutally racist nation in the history of the world. . . . The segregation and extermination of non-Aryans in Hitler’s Germany were shocking for Americans, but they also served as a troublesome analogy. While proclaiming themselves inexorably opposed to Hitler’s practices, many Americans were tolerating the segregation and humiliation of nonwhites within their own borders. The contradiction between the egalitarian rhetoric employed against the Nazis and the presence of racial segregation in America was a painful one.
The Cold War between the United States and the Soviet Union was in full sway in 1954, the year Brown v. Board was decided. University of Virginia law professor Michael Klarman, author of a monumental 2004 publication, titled From Jim Crow to Civil Rights, wrote of the era: “U.S. democracy was on trial, and southern white supremacy was its greatest vulnerability, made all the more conspicuous by the postwar overthrow of colonial regimes throughout the world.” President Truman’s civil rights committee cautioned: “[T]he United States is not so strong, the final triumph of the democratic ideal is not so inevitable, that we can ignore what the rest of the world thinks of our record.”
In an amicus brief for the United States filed in Brown, the attorney general urged:
The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.
The brief included a letter from Secretary of State Dean Acheson on the negative impact of race discrimination upon the conduct of U.S. foreign relations. Acheson wrote:
The United States is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination against minority groups in this country. . . .
[T]he continuance of racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations; and it jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.
Within an hour of the Chief Justice’s announcement of the Court’s unanimous conclusion that, “[i]n the field of public education, the doctrine of ‘separate but equal’ has no place,” the Voice of America broadcast the news, in thirty-four languages, around the globe. The U.S. Information Agency promptly placed articles on Brown in almost every African journal. Time magazine commented: “In many countries, where U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it will come as a timely reassertion of the basic American principle that ‘all men are created equal.’ ” Newsweek magazine observed: “[S]egregation in the public schools has become a symbol of inequality. . . . Now that symbol lies shattered.”
The press in Western Europe similarly applauded Brown. In Paris, Le Monde announced on its front page: “This long-awaited judgment marks a victory of justice over racial prejudice, a victory of democracy. . . .” The Times of London hailed the decision as “among the most important and far-reaching [the U.S. Supreme Court] has ever handed down.” The Manchester Guardian expressed “immense relief” that the United States had “put behind it what has long been its worst reproach. . . .” South of the U.S. border, the Municipal Council in São Paulo, Brazil, cheered Brown as “establishing the just equality of the races, essential to universal harmony and peace.”
In Africa, coverage was extensive. A dispatch from the American Consul in Dakar, Senegal, reported that the decision was “greeted with enthusiasm in French West Africa although the press [there] has expressed some slight skepticism over its implementation.” The weekly Afrique Nouvelle reported on Brown under this headline: “At last! Whites and Blacks in the United States on the same school benches.” Black members of Kenya’s Legislative Council expressed the hope that their country would follow suit:
Here in Kenya we are supposed to create one nation of all races. If we are not educated together, we will live in fear of one another. If we are to stay together forever, why should we have separate schools? Children will learn to know each other intimately in the same schools and fear will disappear.
Not all reactions to Brown were positive. A dispatch from the U.S. Embassy in South Africa reported: “Most South African Whites are segregationists. . . . [T]hough they may see some similarity in America’s color problem, [they] regard their own racial situation as having no true parallel elsewhere. Their interest in the decision, then, would be very academic.” But just four years later, British Prime Minister Harold Macmillan spoke out in South Africa’s Parliament against apartheid. He referred to the “wind of change” blowing through the continent of Africa—change Brown helped to promote.
Massive resistance to Brown mounted in the South of the United States in the late 1950s, continuing into the 1960s. Foreign publications took note. Despite, or perhaps because of, the southern defiance, the world recognized that the U.S. Supreme Court had stepped ahead of the country’s political branches (Congress and the president) and prevailing views in many states in pursuit of equal justice under law.
The pursuit of equal justice under law became a major part of the international human rights agenda. In 1965, the United Nations presented for ratification the International Convention on the Elimination of all Forms of Racial Discrimination. Signed by 180 states as of January 2006, and at last ratified by the United States in 1994, the Convention provides that the State Parties “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”
Of the enduring legacy of Brown, Richard Goldstone, retired Justice of the South African Constitutional Court, and Brian Ray, Justice Goldstone’s 2003 term foreign law clerk, wrote that Brown had demonstrated “the ability of courts to promote human rights and [of] lawyers to effect social change.” Goldstone and Ray referred to decisions in Canada, South Africa, and Trinidad and Tobago citing Brown on the importance of education and equal access to it in a democratic society. Those authors also noted cases in New Zealand and South Africa citing Brown on the power of courts to “issu[e] orders that would impact budget decisions,” orders that might require continuing court surveillance.
On a personal note, Brown and its forerunners, along with the movement for international human rights that ensued, powerfully influenced the women’s rights litigation in the USA in which I was engaged in the 1970s. Thurgood Marshall and his coworkers sought to educate the U.S. Supreme Court, step by step, about the pernicious effects of race discrimination. Similarly, advocates for gender equality sought to inform the Court, through a series of cases, about the injustice of laws ordering or reinforcing separate spheres of human activity for men and women. The ACLU’s Women’s Rights Project, which I helped to launch and direct, was among the organizations inspired by the NAACP Legal Defense and Education Fund’s example.
Advocates of equal citizenship stature for men and women laboring in the 1970s, of course, did not encounter the brand of opposition Thurgood Marshall and his aides experienced in his years at the helm of the NAACP’s Legal Defense and Education Fund. Our lives were never in danger because of our advocacy, and we had no problem finding accommodations when we were litigating cases out of town. But of one thing there was no doubt. We gained courage and inspiration from the litigation campaign
that led to and followed Brown. We copied the strategy of educating judicial audiences in measured movements, in ways digestible by, and palatable to, the decisionmakers.
Brown figured several years ago in a typically fine decision by Israel’s Chief Justice, Aharon Barak. The Israel Land Administration had denied the asserted right of Arabs to build their homes on land in Israel open to the general public for home construction. The administration defended reservation of permission to build to non-Arab applicants on the promise that it would allocate land to establish an exclusively Arab communal settlement. Citing Brown, the Israeli Supreme Court ruled that such allegedly separate-but-equal treatment constituted unlawful discrimination on the basis of national origin.
To sum up, Brown both reflected and propelled the development of human rights protection internationally. It was decided with the horrors of the Holocaust in full view, and with the repressive regimes in the Soviet Union, Eastern Europe, and South Africa a then-current reality. It propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity of all the world’s people.
Remarks on Loving v. Virginia
Federal Judicial Center High School Teachers ProgramII
United States Supreme Court, Washington, D.C.
June 22, 2009
I would like to speak, for just ten minutes or so, about one of the most important cases the U.S. Supreme Court has ever decided. Titled Loving v. Virginia, the case yielded a unanimous decision in 1967.
In May 2008, a New York Times obituary reported the death of Mildred Loving, co-plaintiff in the landmark case. Mildred was not a woman of means or sophistication. She held no academic degrees. But she was endowed with a caring heart and exemplary courage, and the case she pursued together with her husband, Richard Loving, changed America.
In 1958, my second year in law school, Mildred Jeter and Richard Loving drove from Caroline County, Virginia, to Washington, D.C., to get married. They could not marry in Virginia, where they had grown up, met, fell in love, and wanted to build their family. The reason: Richard was white, Mildred was of mixed African-American and Native American descent, and Virginia law (also the law in fifteen other states at that time) banned interracial marriage. The couple, Mildred later recounted, had no mind “to make a political statement or start a fight”; they “were [just] in love, and . . . wanted to be married.”1
The Lovings returned to their home in Central Point, Virginia, after their marriage in D.C., and hung their marriage certificate on a wall in their bedroom. Five weeks after their return, “the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom [at 2:00 a.m.,] [shined] flashlights in their eyes,” and demanded of Richard: “Who is this woman you’re sleeping with?”2 When Richard pointed to the marriage certificate posted on the wall, the sheriff responded, “That’s no good here,”3 then carted the Lovings off to jail. Richard spent the rest of the night locked up. Mildred, the spouse of color, spent that night and the next five days and nights in jail.4
Frightened and uncounseled, the Lovings appeared before a judge and entered pleas to charges of violating Virginia’s Racial Integrity Act. Their sentence, a year in jail, a term the judge would suspend provided that the Lovings “le[ft] the State and [did] not return to Virginia together for 25 years.”5 “Almighty God,” the sentencing judge proclaimed, “created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for [them] to mix.”6
Banished from the community where their families had lived for generations, Mildred and Richard Loving managed as best they could as residents of D.C. Some years later, inspired by the civil rights movement, and particularly, the March on Washington, Mildred wrote to Attorney General Robert Kennedy. Kennedy replied, suggesting that Mildred contact the American Civil Liberties Union. She did, and with the aid of ACLU volunteer lawyers in Virginia (Bernard Cohen and Philip Hirschkop), the Lovings sued the state, seeking to vacate their convictions and gain Virginia’s recognition of their marriage.
Their challenge, commenced in 1963, worked its way up to the Supreme Court, where, on June 12, 1967, Chief Justice Earl Warren announced the Court’s unanimous holding: Virginia’s miscegenation law was unconstitutional. “There can be no doubt,” the Chief Justice wrote for the unified Court, “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”7 For good measure, the Court added, Virginia’s ban on interracial marriage also “deprive[d] the Lovings of liberty without due process.”8 (The California Supreme Court had reached the same judgment nearly two decades earlier, in 1948, six years before Brown v. Board of Education was decided by the U.S. Supreme Court.)
How did the 1967 press greet the case that ended law-backed apartheid in America? Not with unreserved applause. A New York Times editorial commented: young people (that meant 1960s young people) would wise up, the editor hoped; they would no longer choose “racially mixed marriage as a gesture of defiance against law,” pairings “rooted in rebellion more than . . . in affection.”9 “Naturally,” the Los Angeles Times observed, “there was nothing in the opinion that could be taken as lending encouragement to the idea of interracial marriage.”10 The Washington Post described Mildred Loving, not as a woman of courage, but as “an attractive, slender 27-year-old Negro.”11
Forty years after the muted zeal of first reactions to the landmark decision, Mildred Loving wrote: “I have lived long enough . . . to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.”12 The last state to rid its laws of a miscegenation ban was Alabama, in 2000. Today, 4.3 million interracial couples reside in the United States.13
Like Mildred Loving, I have lived long enough to see big changes. Who would believe, for example, in the 1950s when Justice O’Connor and I graduated from law school, that two women no law firm would hire simply because we were women, would one day be seated on the highest Court in the land? Or that the president of the United States would be an African-American, himself the child of an interracial marriage? Yes, we still have a way to go to ensure that all people in our land enjoy the equal protection of the laws, but considering how far we have come there is good cause for optimism about our country’s future.
Remarks on the Value of Diversity: International Affirmative Action
Institut d’Etudes PolitiquesIII
Paris, France
July 17, 2009
Members of the faculty, graduating students and their families, and friends of Sciences Po, I am glad to speak at this celebration. I have read of Sciences Po’s initiative to achieve excellence in diversity, made a priority by President Descoings. Through that initiative, talented students from all quarters of French society are drawn to this great school. The design is to deepen the complexion and life experiences of the student body and, eventually, the top ranks of government and business in France. Other institutions of higher education have copied the model set by Sciences Po, and that is a measure of the program’s success.
I
In the United States, kindred efforts to embrace a wider society in schools and workplaces started in the late 1960s, and I have been told that affirmative action—or what Europeans call positive discrimination—would be an appropriate topic for this talk.
I will begin with a few comparative sideglances. Several post–World War II human rights charters recognize that a nondiscrimination principle alone will not ensure substantive equality. To combat centuries of inequality and to uplift people disadvantaged because they belong to long-subordinated populations, many modern constitutions allow, or even require, affirmative action. India’s 1950 constitution is a prime example. Among other affirmative action provisions, it broadly instructs the government to “promote with special care the educational and economic interests of the weak
er sections of the people.” For another example, South Africa’s 1996 constitution provides that, to promote achievement of equality, “legislative and other measures [may be taken] to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.” In nations forming the European Union, in contrast to India and South Africa, no similarly entrenched caste system existed and no suppression of the majority by the minority propelled positive discrimination. But European Union charters and directives, from the 1957 Rome Treaty to the 2000 Charter of Fundamental Rights, have advanced equal opportunity for women. The Charter confirms that “the principle of equal treatment” does not impede member states from adopting special measures to facilitate women’s pursuit of vocational activities and professional careers.
On the world stage, two key United Nations covenants endorse affirmative action. First in time, the 1965 Convention on the Elimination of All Forms of Racial Discrimination declares: “Special measures taken for the [sole] purpose of securing adequate advancement of certain racial or ethnic groups . . . shall not be deemed racial discrimination.” Next, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women excludes from the definition of discrimination the “[a]doption . . . of temporary special measures aimed at accelerating de facto equality between men and women.”
The constitutions of the United States and France contain no provisions resembling the two I have just read. The U.S. Constitution, as amended in 1868, simply prohibits denial of “the equal protection of the laws.” The 1958 Constitution of France states in Article I a more precise principle: it declares the equality of citizens “without distinction of origin, race or religion.” In keeping with that declaration and French tradition, I am told, no law or policy in France describes individuals or groups by race or ethnicity. Instead, educational priority zones, urban development strategies, and similar measures keyed to geographical location aim to advance the fortunes of people living in economically depressed areas.
My Own Words Page 26
