Our society and its law don’t only go in one direction. The pendulum swings back and forth, though it takes whole lifetimes to do it in. Roe v. Wade didn’t settle the abortion issue like the Court thought it would; rather, it launched a movement that, while not yet able to overturn the decision, has seen a current plurality of Americans – including a majority of women – adopt the label “pro-life.” Even as the progressives get ever shriller about a “War on Women” or the need to protect “women’s health,” an emerging consensus is saying, Enough. What woman’s health was protected by Kermit Gosnell and his compatriots? Legalized abortion hasn’t gotten rid of back-alley abortions, it has only given the back-alley butchers cover to practice with the full approval of Planned Parenthood and its allies.
But back to race. In Brown, a unanimous Court – including one Southern justice who got up off his sickbed in order to attend – struck down the doctrine of “separate but equal” that had been enshrined in the 1896 decision, Plessy v. Ferguson. This points up three interesting comparisons. First, the Windsor court was not unanimous. Not even close. The unanimous Brown opinion is a triumph of clarity; the hodge-podge reasoning in Windsor is baffling, except for its mean-spirited assertion that the only reason to oppose same sex marriage is bigotry.
Second, we forget that Brown was that rare occurrence, a time when the Supreme Court explicitly reversed itself. In its day, Plessy was considered quite enlightened. Brown, however, did not merely modify Plessy, it cast it aside; in doing so, the Court was admitting that it got it WRONG sixty years before. If the Court has been wrong before, it can be wrong again; if it has reversed itself before, it can reverse itself again.
Nor was this the first time the Court has got it wrong. We forget that the Dred Scott decision in 1857 once declared that African-Americans were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” The Court noted in 1873, in The Slaughter-House Cases, that Dred Scott was only overruled by the adoption of the Fourteenth Amendment. The Court itself has never disavowed the decision. Unable to countenance Justice Taney’s vile racism, however, the new Republican Party said all this was a mere obiter dictum, which they did not consider legally binding. So should the present Republican party and all who stand for traditional marriage consider the opinion of Justice Kennedy, where he asserts that the only reason Congress could have for passing DOMA was “bare congressional desire to harm a politically unpopular group.”
So, forty years from now, will Windsor be a landmark like Brown, or an embarrassment like Plessy? Will Kennedy’s bigotry be used to restrict the advocates of traditional marriage, or will they consider it a mere obiter dictum like Taney’s rant in Dred Scott?