Civil Rights

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The Strange Story of Lloyd Gaines

Never heard of Lloyd Gaines?  I hadn’t either until about 2 hours ago when I read the story in today’s New York Times.  Buried on page 19, is the story of a Supreme Court decision I had never heard of and the mystery surrounding the plaintiff, Lloyd Gaines.

Mr. Gaines left his apartment in Chicago on the night of March 19, 1939, three months after the Supreme Court ruled that the state of Missouri had to admit him to law school.

On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.

Despite his victory, Mr. Gaines was troubled. He had told relatives and friends he was having trouble finding steady work to earn money for school (apparently one reason he went to Chicago), and he was ambivalent about being in the spotlight.

“As for my publicity relative to the university case, I have found that my race still likes to applaud, shake hands, pat me on the back and say how great and noble is the idea,” he wrote his mother in St. Louis days before disappearing. “How historical and socially important the case but — and there it ends.” He added, “Sometimes I wish I were just a plain, ordinary man whose name no one recognized.”

For the 1930s, Missouri’s policy was enlightened: since there was no law school at Lincoln, the state paid the tuitions of blacks from Missouri who went to nearby states to study law. And the Missouri legislature had committed itself to establishing a law school at Lincoln someday, should there ever be enough demand.

But Mr. Gaines said he wanted to go to the University of Missouri’s law school, so in 1936 he sued in state court to gain admission. He lost, but lawyers for the N.A.A.C.P. saw his case as a way to attack the “separate but equal” doctrine laid down by the Supreme Court in 1896 in Plessy v. Ferguson, which was used to justify public school segregation.

Mr. Gaines’s team was headed by Charles Hamilton Houston, chief litigator for the N.A.A.C.P., mentor to Thurgood Marshall and later dean of the Howard University Law School. The case reached the Supreme Court on Nov. 9, 1938. Houston argued that the state had blatantly failed to meet the “separate but equal” standard and that paying out-of-state tuition for black students from Missouri was not good enough. The court ruled 6 to 2 for Mr. Gaines. “The basic consideration here is not as to what sort of opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color,” Chief Justice Charles Evans Hughes wrote.

Justices James C. McReynolds and Pierce Butler dissented, saying the State of Missouri ought to be able to set its own education policies. (There was one vacancy on the court.)

The ruling in Gaines v. Canada (S. W. Canada was the university registrar) would eventually open the doors of law schools for blacks in a dozen Southern and border states. And it was a steppingstone toward Brown v. Board of Education, the landmark 1954 decision that repudiated the “separate but equal” notion in outlawing school segregation.

So what happened to Mr. Gaines?  Was he murdered?  If so, by a mugger out to rob him or by segregrationists who had stalked him?  Or did he simply decided he did not want to attend the University of Missouri law school, didn’t want to deal with the pressure and just disappear?

Lloyd Gaines’s nephew George Gaines, a retired Navy captain who lives in San Diego, said recently, “We have never had him declared dead.” But Captain Gaines said he doubted that his uncle would have chosen to drop out of life, or end his life, given the perseverance he displayed.

In the early 1950s, the University of Missouri began admitting black students. Lloyd Gaines is now revered at the university, which awarded him an honorary law degree in 2006. That year, the state bar awarded him a law license, posthumously.

If he had lived, would we be celebrating Gaines v. Canada as we do Brown v. Board of Education?    Would Brown have come sooner?  Would Gaines have been the James Meredith of University of Missouri?  On the eve of the start of Senate hearings on the nomination of the first Latino Justice, it is interesting to think about.

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Iowa Joins the Marriage Equality States

With today’s unanimous decision, the Iowa Supreme Court made Iowa the third state to approve of same sex marriage joining Massachusetts and Connecticut.  According to the story in the Washington Post

The decision will be considered final in 21 days unless a rehearing is formally requested. The county that challenged the lower court’s ruling indicated today that it would not file such a request, meaning that same-sex couples likely will be able to obtain marriage licenses in Iowa in three weeks, attorneys for the plaintiffs said.

So what do the defense of marriage folks do now?  Richard Kim has a long post on The Nation.com in which he outlines the options and discusses some of the larger political implications. 

So now that the Iowa Supreme Court has essentially legalized gay marriage, what’s next? Some right-wingers (like Iowa Congressman Steve King and William Duncan of the Marriage Law Foundation) are already promising to put a defense of marriage amendment in front of Iowa voters. But they have a long road ahead of them. Iowa law says that a constitutional ammendment must pass TWO consecutive sessions of the state legislature before it appears on a ballot. So the earliest one could see a DOMA on the ballot is 2011, but with Democrats in control of both houses and with both the House speaker and the Senate majority leader on record supporting the decision–there’s virtually no chance that such an amendment would even come up for a vote this session.

That leaves the right-wing with a daunting task: defeat enough Democrats to take control of both houses (Dems currently enjoy a 56-44 and 32-18 advantage), replace them with Christian right Republicans who are willing to champion a marriage amendement and peel off enough remaining Democrats (to offset any moderate GOP defectors) to squeeze through four rounds of yes votes. Only then will they even have the chance to put the issue in front of voters–sometime in 2013 or 2014 if all the stars align. Then, they still have to win that campaign in a political climate in which increasing numbers of voters support gay rights. Oh yeah, and the vote will take place after Iowans have witnessed 5-6 years of ho-hum same-sex nuptials of which the most radical, earth-shaking element is that one of the grooms is a 50-year old church organist named Otter Dreaming (one of the named appellees in the Iowa decision). As Ari Berman points out, Iowa isn’t exactly the hotbed of culture war antagonism–despite being square one for GOP presidential wrangling–so my strong hunch is that Mr. Dreaming’s marriage will endure at least any legal and political challenges.

It doesn’t seem very likely that Iowa will amend it’s Constitution.  Here in Massachusetts it didn’t take long for gay marriage to just become marriage.  Just read Andrew Sullivans story about his Massachusetts wedding.

Born in a different era, I reached that conclusion through more pain and fear and self-loathing than my 20-something fellow homosexuals do today. But it was always clear to me nonetheless. It just never fully came home to me until I too got married.

It happened first when we told our families and friends of our intentions. Suddenly, they had a vocabulary to describe and understand our relationship. I was no longer my partner’s “friend” or “boyfriend”; I was his fiancé. Suddenly, everyone involved themselves in our love. They asked how I had proposed; they inquired when the wedding would be; my straight friends made jokes about marriage that simply included me as one of them. At that first post-engagement Christmas with my in-laws, I felt something shift. They had always been welcoming and supportive. But now I was family. I felt an end—a sudden, fateful end—to an emotional displacement I had experienced since childhood.

The wedding occurred last August in Massachusetts in front of a small group of family and close friends. And in that group, I suddenly realized, it was the heterosexuals who knew what to do, who guided the gay couple and our friends into the rituals and rites of family. Ours was not, we realized, a different institution, after all, and we were not different kinds of people. In the doing of it, it was the same as my sister’s wedding and we were the same as my sister and brother-in-law. The strange, bewildering emotions of the moment, the cake and reception, the distracted children and weeping mothers, the morning’s butterflies and the night’s drunkenness: this was not a gay marriage; it was a marriage.

And our families instantly and for the first time since our early childhood became not just institutions in which we were included, but institutions that we too owned and perpetuated. My sister spoke of her marriage as if it were interchangeable with my own, and my niece and nephew had no qualms in referring to my husband as their new uncle. The embossed invitations and the floral bouquets and the fear of fluffing our vows: in these tiny, bonding gestures of integration, we all came to see an alienating distinction become a unifying difference.

It was a moment that shifted a sense of our own identity within our psyches and even our souls. Once this happens, the law eventually follows. In California this spring, it did.

So I think Richard Kim is right.  Iowans are soon going to find gay marriages just as ordinary as straight ones.  So what is left for the opposition?  Here’s Richard Kim again

So, here’s my guess as to what the right can and will do. They’ll move to amend Iowa’s marriage law so that it requires in-state residency. Currently, Iowa (like California and unlike Massachusetts) does not have any such restriction (prompting claims that Iowa will become the Mecca of gay marriage). Of course, because of the court’s equal protection ruling, any such change will have to apply to both gay and straight couples, but the collateral benefit for the right would be in limiting the number of gay couples who can marry in Iowa and then sue in other states. But after thousands of out-of-state couples got married in CA and will likely stay married no matter how the CA Supreme Court rules on Prop 8’s broader legality–there’s not much use in raising this hurdle.

So, Iowa, Massachusetts welcomes you to the club.  I don’t think it will be too long before there are more than three members.

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Ending the Defense of Marriage Act

A lawsuit was filed last week here in Massachusetts alleging that the 1996 Federal Defense of Marriage Act  is unconstitutional and discriminatory. 

According to the story in the Boston Globe on March 3

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse’s last name on a passport.

I think it is about time someone litigated the issue.  I have friends who end up going though lots of gyrations this time of year filing individual federal returns and joint state ones.  I know people who can’t get health insurance throught their federally employed spouse.  And I think it is criminal that people like Massachusetts Congressman Studds surviving spouse can’t get his death benefits.

Those who oppose same sex marriage worry that the end of the Defense of Marriage Act would mean that the individual states would have to approve of gay marriage.  Mary Bonauto, the attorney from GLAD who brought the lawsuit responds

If the plaintiffs win, she said, it would not extend same-sex marriage beyond Massachusetts and Connecticut, the two states where it is legal.

But it would dismantle a federal statute that affects more than 1,000 marriage-related benefits, and it would be a huge victory on symbolic and practical levels for supporters of same-sex marriage, according to legal specialists.

The plaintiffs and GLAD have a long road ahead of them and I, for one, wish them well and I’m proud that Massachusetts citizens are, once again, leading the way to equality.

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More Thoughts on Prop 8

In her The Last Word Column  in the November 24 issue of Newsweek Ann Quindlen wrote about gay marriage and the decision in Loving v. Virginia.

One of my favorite Supreme Court cases is Loving v. Virginia, and not just because it has a name that would delight any novelist. It’s because it reminds me, when I’m downhearted, of the truth of the sentiment at the end of “Angels in America,” Tony Kushner’s brilliant play: “The world only spins forward.”

I also wrote about Loving in my post Marriage in Massachusetts.  It is also one of my favorite decisions as well as a wonderful story.

The world is going to continue to spin forward.  The denial of Constitutional rights to a specific group can never last.  There may be one step forward (see Connecticut and New Jersey) and two back (California and other other states which have adopted anti-gay marriage statutes recently), but we will keep moving forward.

And then there is this great Jack Black video.  It has been out there for a while, but it is always worth seeing.

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Marriage in Massachusetts

I was married in Virginia in 1994, but when we first met in 1965 it is likely that it would have been illegal for us to marry there as it was pre-Loving vs. Virginia.  That case was the vehicle for the Supreme Court to say in 1967 that bans on interracial marriage are unconstitutional.    While ours is an Asian – Caucasian marriage and not a Black-White one, things were definitely different in 1965 and it took a long time to change.  But they did change and now Virginia can elect a Senator who is part of an interracial marriage.  There are even Republicans like Clarence Thomas who engage is what used to called miscegenation.

So what does this have to do with marriage in Massachusetts you might ask?  Massachusetts has just repealed a 1913 law passed in support of the the bans on interracial marriage.  The repeal came because supporters of gay marriage (like me) wanted to allow couples from other states to marry.  I think that the repeal of the 1913 law will be like the Loving decision, opening the door to change in other states.  The homophobes can dis Massachusetts and California all they want, but the tide is changing.