The U.S. Supreme Court’s recent same-sex marriage decision enshrined into law a notion that would have been unthinkable as recently as a decade ago — that gay men and women have the right to marry in every state of the union.
To many, the ruling’s author seemed nearly as improbable as his opinion in Obergefell v. Hodges. Anthony Kennedy is a Catholic and a “conservative.”
Another case from nearly 70 years ago, Perez v. Sharp, and its author, offers a possible explanation and some context. In the summer of 1948, Andrea Perez and Sylvester Davis, both in their 20s, went to the Los Angeles County Administration Building for a marriage license. The clerk left the couple standing at the counter while he sought out his supervisor. When he returned, he said he was sorry but he could not issue the license: Perez was white and Davis, African-American.
California — like other states at the time — explicitly forbade marriage between whites and individuals of other races. Perez and Davis went to court. In October 1948, the California Supreme Court ruled in favor of the couple. Writing for the majority, Associate Justice Roger Traynor said: “Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice.”
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He added: Equal protection laws could not be based on “arbitrary classifications of groups or races.”
Associate Justice Jesse Carter concurred with his colleague, but went further: Laws that barred interracial marriage were “the product of ignorance, prejudice and intolerance.”
Two months later, Perez and Davis married.
It took an additional two decades for the U.S. Supreme Court, in Loving v. Virginia, to legalize interracial marriages nationally.
Anthony Kennedy was 12 years old and living in Sacramento when Traynor wrote his opinion in Perez v. Sharp. The son of a prominent lawyer, Kennedy undoubtedly heard about the decision.
After law school at Harvard, Kennedy returned to California and took over his father’s law practice. By then, Traynor was chief justice. Kennedy would have been well acquainted with his rulings because Traynor enjoyed a national reputation.
The California Supreme Court had a stellar reputation, as well. The Wall Street Journal once deemed it “the most innovative of the judiciaries, setting precedents that heavily influence other states and the federal bench.”
During the 1950s and 1960s, California’s high court limited the kinds of evidence prosecutors could use in court; compelled police to notify arrestees of their right to counsel; forced businesses to make their products safer; and protected the right of authors to publish material sometimes deemed “obscene.” Often, these rulings predated federal courts by years.
Traynor’s approach had a profound effect on young attorneys of Kennedy’s generation, who entered the profession believing, as one said, that the law should be used as “an instrument of social change.”
Roger Traynor retired in 1970, just before deference toward judges and courts began to wane in the face of larger social changes, including civil rights and feminist challenges to powerful individuals and institutions.
The elevation to the judiciary of minorities and women fueled a backlash among conservatives, who charged they were “affirmative action” hires who carried specific agendas with them to the bench.
By the late 1980s, when Ronald Reagan appointed Kennedy to the U.S. Supreme Court, youthful idealism had largely been replaced by pragmatism, even cynicism.
The California Supreme Court had lost much of its luster and had moved to the right, following a brutal and unprecedented election that removed three liberal justices, including the first female chief justice, Rose Elizabeth Bird.
But the spirit of Traynor and his approach to law lived on in California. In May 2008, Chief Justice Ron George — appointed by Republican Gov. George Deukmejian — wrote the majority opinion in the case that legalized same-sex marriage in California. Appearing to channel Traynor, George wrote that the right to marry “constitutes a basic civil or human right for all people.”
He later explained his reasoning: “Basically, the argument (against gay marriage) was largely historical — ‘well, it’s always been this way.’ ” But times change, and the law had to change with them, he added.
George’s decision angered same-sex-marriage opponents, who quickly qualified a ballot measure, Proposition 8. Its November 2008 passage banned gay marriage and quickly fueled a flurry of lawsuits.
A 2013 U.S. Supreme Court ruling by Anthony Kennedy gave same-sexmarriage proponents hope. Then came Obergefell v. Hodges. Kennedy’s opinion, like George’s, seemed to channel Traynor, both in its language and its larger message.
It read: “The nature of injustice is that we may not always see it in our own times the court, like many institutions, has made assumptions defined by the world and time of which it is a part.”
Traynor and the California Supreme Court’s “golden age” are long gone, but Kennedy is a product of this state, and of a time when its high court promoted the notion that the Constitution was a living, breathing document that could be used to make a difference in the lives of real people, as an instrument of social change.