COURT DECISIONS PRECEDED ACCEPTANCE MANY TIMES

Of all the efforts to evade the obvious analogy of California’s same-sex Marriage Cases to the civil rights cases of a half-century ago, one of the most eye-popping is served up by Lawrence J. Siskind in “Why the Marriage Ruling Won’t Stand for Long” (May 30).

According to Mr. Siskind, the difference between In Re Marriage Cases, S147999 (2008), and the civil rights cases is that the California Supreme Court has gotten ahead of the democratic process in Marriage Cases, whereas the courts were in step with the electorate in the civil rights cases. Here’s Mr. Siskind’s eye-popper: “Where the judiciary has successfully led or channeled the democratic process, as the U.S. Supreme Court did in the … civil rights cases, it succeeded because fundamental notions of … racial equality were already deeply ingrained in the fabric of society.”

Huh? Racial equality? Deeply ingrained in the fabric of American society? In 1948, when the California Supreme Court struck down legislation against interracial marriage in Perez v. Sharp, 32 Cal.2d 711? In 1954, when the U.S. Supreme Court struck down separate-but-equal public education in Brown v. Board of Education, 347 U.S. 483? Now, that’s rewriting history!

Perez was hardly in step with the electorate in 1948 or for many years thereafter. A 1958 Gallup poll had a whopping 4 percent of Americans approving of interracial marriages. Subsequent Gallup polls showed this number rising to 20 percent in 1968, 36 percent in 1978, 48 percent in 1994, 64 percent in 1997, and finally 77 percent in 2007. It took a long time for the American public to catch up with Perez — for the fundamental notion of racial equality espoused in that case to become “deeply ingrained in the fabric of society.”

Brown came at a time of deep national division on the subject of racial segregation in the public schools. A 1954 Gallup poll had only 54 percent approving of the decision. A 1959 Gallup poll had 53 percent saying the decision “caused a lot more trouble than it was worth.”

Yet Justice Roger Traynor in Perez and Justice Earl Warren in Brown took on the racial prejudice that was ingrained in the fabric of American society two generations ago and brought the law in line with the fundamental notions of racial equality that are deeply ingrained in our Constitution. Would Mr. Siskind have stood with Justice Traynor in 1948 and Justice Warren in 1954? I doubt it. He more likely would have condemned them as what he calls “legal activists” who “see the courts rather than the ballot box as the best arena for promoting social change” and impose their own “policy preferences … which run counter to public sentiment.”

Here’s an interesting quote: “Courts are neither peculiarly qualified nor organized to determine the underlying questions of fact with reference to which the validity of the legislation must be determined. Differing ideas of public policy do not properly concern them. The courts have no power to determine the merits of conflicting theories, to conduct an investigation of facts bearing upon questions of public policy or expediency, or to sustain or frustrate the legislation according to whether they happen to approve or disapprove the legislative determination of such questions of fact.”

This sounds like Mr. Siskind, doesn’t it? But it’s not. It’s Justice John Shenk in 1948, dissenting in Perez — arguing, as does Mr. Siskind in 2008, that courts should bow to public sentiment when deciding constitutional issues that implicate matters of public policy.

Mr. Siskind is spectacularly wrong: The civil rights cases of two generations ago were not in step with the fabric of contemporaneous society. The plain truth is that the California Supreme Court and the U.S. Supreme Court were, in those cases, very much the “arena for promoting social change” that Mr. Siskind abhors.

It’s easy to say in hindsight today that you would have been on the right side of history in 1948 and 1954, but it takes foresight — and courage — to do what Justices Traynor and Warren did then, and what Justices [Ronald] George, [Kathryn Mickle] Werdegar, [Joyce] Kennard and [Carlos] Moreno have done in Marriage Cases.

Jon B. Eisenberg
Oakland



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