Long Struggle over Voting Rights Ahead

By Gloria J. Browne-Marshall Contributing Writer | 7/12/2013, 3:46 p.m.
Disappointed civil rights groups had hoped Justice Anthony Kennedy would support legal protections for African-Americans as well as gay marriage.

On his long march for voting rights, Dr. Martin Luther King, Jr. said, “the arc of the moral universe is long. But, it bends toward justice.” Years later, justice hovers along that bend; but, beyond the reach of too many African-Americans.

Witnessing gay marriage activists celebrate their recent legal victory was bittersweet for African-Americans left stunned by the Supreme Court’s two civil rights decisions. It was not easy passing through the crowded Supreme Court plaza as the Gay Men’s Chorus of Washington D.C. sang “America,” couples made wedding plans, and television reporters rushed to interview the same-sex marriage advocate, Edith Windsor.

Perhaps it is selfish to ask gay rights leaders to acknowledge a civil rights defeat even while celebrating their well-earned victory. But, throughout their case, gay rights activists had argued that their right to marry was like Loving v. Virginia, the interracial marriage case. Their second-class treatment was like Plessy v. Ferguson, the racial segregation case. Their attorney, Ted Olson, was heralded as another Thurgood Marshall.

Now, civil rights activists were left assessing damage and develop- ing strategies. Within 48 hours, the U.S. Supreme Court had gutted the Voting Rights Act of 1965 and rejected affirmative action as discrim- inatory to White applicants. Colleges must now find a race-neutral solution to the race-based problem of diversity in education. Although re-authorized by overwhelming numbers, Congress’ pre-clearance formula -- Section 4 of the Voting Rights Act -- was ruled unconstitutional.

Disappointed civil rights groups had hoped Justice Anthony Kennedy would support legal protections for African-Americans as well as gay marriage. Appointed by former President Ronald Reagan, Justice Kennedy is known for his ability to swing between conservative and progressive issues. He explained how the Defense of Marriage Act (DOMA) deprived gays of Federal benefits by illegally defining marriage as only between a man and a woman.

Justice Kennedy, a California lawyer and judge during the high mark of gay activism, may have less personal experience with racial justice struggles. He probably knew of gay rights activist Harvey Milk who began by fighting injustices in Greenwich Village, NYC, before moving to San Francisco.

Milk was elected to the San Francisco Board of Supervisors; becoming one of America’s first openly gay politicians. In 1978, the nation was shocked when Harvey Milk was assassinated, along with Mayor George Moscone, by Dan White, a conserva- tive. Dan White claimed Twinkie cupcakes and junk food caused temporary insanity.

Judge Kennedy must have witnessed the San Francisco riots following White’s mere six year sentence for killing both Milk and Moscone. He witnessed the inequality suffered by gays in California. DefeatingDOMA meant Justice Kennedy could right that wrong. He had written the opinion in Lawrence v. Texas outlawing gay sex.

But, then, as a long-standing professor at McGeorge Law School, Justice Kennedy should also know the difficulties in achieving classroom diversity without affirmative action. He should know that White women have advanced using affirmative action. But students of color are the targets of its opponents.

Although Justice Clarence Thomas, the only African-American on the Court, and a direct recipient of affirmative action, would end the program altogether, Justice Kennedy had not appeared to be as conservative. It was Justice Antonin Scalia who called these legal rights and protections a “perpetuation of racial entitlement.”