If, as many activists maintain, the struggle for gay rights is just the latest phase of the civil rights movement, then the Supreme Court’s decision in United States v. Windsor, striking down the federal Defense of Marriage Act, may be this generation’s Brown v. Board of Education.

By rejecting the idea that racially segregated schools could ever be constitutionally equal, Chief Justice Earl Warren’s decision in Brown put the authority of the Constitution squarely on the side of those who were working to dismantle the whole, odious regime of segregation, which condemned blacks to second-class citizenship.

Similarly, Justice Anthony Kenn-edy’s opinion in Windsor makes clear that a majority of the court now believes that the Constitution’s guarantee of equal protection forbids all laws that limit same-sex couples to what he calls “second-class marriages.”

Unlike Warren’s opinion in Brown, which deals rather gently with our fellow citizens who supported segregation (and never accuses segregationists of making blacks “second-class citizens”), Kennedy’s opinion in Windsor brands advocates of traditional, gendered marriage as bigots, insisting that “the principal purpose and necessary effect” of DOMA are “to demean those persons who are in a lawful same-sex marriage.”

In the Brown case, the question was whether state laws requiring separate schools for black and white children violated the Equal Protection Clause of the 14th Amendment.

Although the Civil War had been fought to end slavery, and although three constitutional amendments were enacted after the war to establish equality between the former slaves and their erstwhile masters, such equality as had been secured by Reconstruction quickly evaporated once the Union troops decamped from the South.

Laws mandating segregation, in open defiance of the Civil War Amendments, were widely adopted, and the Supreme Court, to its enduring shame, acquiesced, holding that separate accommodations for blacks and whites were acceptable, so long as they were “separate, but equal.”

Yet when the court finally called for an end to segregation, giving effect to the plain meaning of the Civil War amendments, Warren’s opinion did not argue, as he might have, that segregation was the policy of bigotry and had always been unconstitutional.

Instead, he stressed that changes in society and a better understanding of the psychological effects of segregation made clear that “in the field of public education, ‘separate but equal’ has no place.” Those who had defended segregation, he implied, were mistaken, but not necessarily evil; indeed, the wrongfulness of segregation had only fully come to light thanks to modern psychological research, so that the segregationists’ errors were perhaps even excusable.

In Windsor, the question was whether the federal law specifying that the word “marriage” in federal law means “a legal union between one man and one woman as husband and wife” violates the due process clause of the Fifth Amendment.

Unlike the Brown case, where a good historical case could be made that the 14th Amendment had always prohibited the states from imposing segregation, no one supposes that the Fifth Amendment, ratified in 1791, has always prohibited federal laws from treating same-sex couples differently than opposite-sex couples. Indeed, because the Fifth Amendment does not expressly guarantee the “equal protection of the laws,” as the Fourteenth Amendment does, the idea that the Fifth Amendment has an implicit “equal protection component” is itself a relative novelty.

And until still more recently, “marriage” was understood by almost everyone, apart from a few visionary activists, to mean exactly what DOMA states.

Kennedy might, then, have written a Brown-like opinion, holding that DOMA may have served the reasonable goal, in 1994, of keeping the federal definition of marriage consistent with the traditional understanding, so that legal changes to marriage in one or a few states would not, by having effects in federal law, implicate the nation as a whole. Now that about a third of the U.S. population lives in states allowing same-sex marriage, he might have argued, that rationale is no longer applicable.

Thus he might have characterized support for DOMA as having been not so much evil as due to an excess of caution, and perhaps even as having been excusable.

Kennedy’s righteous moralism is no doubt more pleasing to the ears of today’s advocates than Warren’s mild rhetoric must have been to civil rights activists then. Warren, however, understood that the task of judicial statesmanship was to find a way to reconcile those who did not already agree with him with the new order, not to deepen and embitter the nation’s divisions.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: