Issue:  Vol. 48 / No. 7 / 15 February 2018

Online extra: Friends of the Court: Briefs by black groups cite equality


Professor Aderson Francois
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Web teaser: The first installment highlights Howard University's civil rights clinic, the California NAACP, and the NAACP Legal Defense and Education Fund

"It is a terrible, an inexorable, law that one cannot deny the humanity of another without diminishing one's own," – James Baldwin

"It is particularly apt to conclude our amicus brief with this quote," explains Professor Aderson Francois, supervising attorney at Howard University School of Law Civil Rights Clinic. "Not only was Baldwin gay and African American, he rejected any notion that he had to choose between either community and he stood up for the equal rights of gay people. He believed at the end of the day, if you don't accept a person as a full human being, you will degrade and harm yourself."

In honor of Black History Month, Marriage Equality USA is featuring this Howard University amicus brief, along with two other briefs filed by the California State Conference of the National Association for the Advancement of Colored People (California NAACP) and the NAACP Legal Defense and Education Fund Inc. This column kicks off a daily series where MEUSA will be partnering with the Bay Area Reporter to highlight each of the 30 amicus "friend of the court" briefs submitted by hundreds of organizations, professional associations, and religious institutions filed before the California Supreme Court in support of the freedom to marry.

"The same arguments asserted by opponents of the right of same-sex couples to marry were also made to justify racial apartheid and the ban against interracial marriage." – Howard University School of Law Civil Rights Clinic amicus brief

This amicus brief continues, "We are long past the time when anyone would seriously claim that interracial marriages threaten the moral fabric of our civilization, are contrary to nature, or will be harmful to children of such relationship. Therefore, the onus should be on opponents of same-sex marriage to demonstrate how these arguments, that time and experience have so thoroughly rejected in the context of interracial marriage, should now be dug up, dusted off, and given any consideration, much less credence, in the context of same sex marriage."

The Howard University School of Law Civil Rights Clinic provides a plethora of examples to illustrate the striking similarity in arguments used to ban interracial and same-sex couples from the freedom to marry. For example, theological arguments and the Bible, even references in Leviticus, were used by opponents of marriage for interracial and same-sex couples. Assertions were made that relationships for interracial and same-sex couples were unnatural and purely sexual, not worthy of marriage and that children raised in such unions would be physically and psychologically harmed.

This brief states "There is nothing new about the arguments marshaled in opposition to same-sex marriage. The very same arguments were assembled against interracial marriage. As a society, we have rightly rejected these attempts to deny full human dignity to interracial couples and individuals. We should do no less for same-sex couples."

The Howard University School of Law Civil Rights Clinic amicus brief summarizes that "beneath the surface politeness of many of the submissions to the court in opposition to same-sex marriage lie the same uncivil sentiments that animated the opposition to interracial marriage; the words may be less uncharitable, the phrasing less intemperate, but the debasing and degrading ideas are at bottom the same."

"All too often, the African American community is portrayed as opposing marriage for same-sex couples," said Francois. "Through this amicus brief, our students at Howard University wanted to illustrate this isn't the case."

"An eloquent voice in favor of marriage by same-sex couples can be found in California's legal history. It is the voice of Roger J. Traynor." – California NAACP amicus brief

This year marks the 60th anniversary of Perez v. Sharp, where the California Supreme Court, under the leadership of Justice Roger Traynor, ended the ban on interracial marriage. In this historic decision, the court ruled, "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 and thereby restricts his right to marry."

The California NAACP, through its amicus brief, wanted to clearly articulate its belief that the Perez decision is equally applicable to current restriction on marriage for same-sex couples. To do so, it sought the counsel of a well-respected appellate attorney, Jon Eisenberg. The result was an amicus brief that juxtaposes the language in the 1948 Perez decision with the Massachusetts Supreme Judicial Court's historic 2003 decision in Goodridge v. Dept. of Public Health, which ended that state's ban on marriage for same-sex couples.

"It is particularly useful to compare the Perez and Goodridge decisions together," stated Eisenberg. "While these cases came from different times and context, by swapping references to race and/or sexual orientation in each decision, it is clear that the two cases involve all the same issues and legal propositions."

So the California NAACP amicus brief includes citations from Perez where the words associated with race are substituted with those associated with sexual orientation; one example reads "distinctions between citizens solely because of their sexual orientation are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Through the revision of Goodridge, words related to sexual orientation are substituted for those of race where one citation reads, "excluding interracial couples from civil marriage prevents children of interracial couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure."

Furthermore, the California NAACP amicus brief highlights Justice Traynor's leadership, particularly in sharp contrast to Justice John Shenk's overt racism. [Justice Shenk wrote the dissent in Perez.]

"No reasonable person today would endorse the views of Shenk," stated Eisenberg. "Yet, two other Supreme Court justices signed onto this dissent and argued in favor of maintaining the ban on interracial marriage. In 1948, those views were still in the mainstream. Justice Traynor

Alice Huffman
and three of his colleagues had the courage and foresight to repudiate them. I hope in reading this brief, the Supreme Court justices realize history should repeat itself. The California Marriage Cases are Perez all over again. Today, looking back 60 years ago, it's obvious Perez was the right decision to make. And using that benefit of hindsight with Perez, I hope the justices will see the same is true in this case as well."

Alice Huffman, president of the California NAACP, has been one of the greatest advocates for marriage equality for same-sex couples. In an Associated Press article by Lisa Leff, Huffman stated, "In a place like California, you can not possibly work for rights if you don't work for gay rights. You either believe in the rights of everyone or you are in the wrong business."

In addition to Huffman, a growing number of African American civil rights leaders are also expressing support for marriage equality, including Congressman John Lewis (D-Georgia), former Senator Carol Moseley Braun (D-Illinois), civil rights leader Julian Bond, the Reverend Al Sharpton, and the late Coretta Scott King.

"The basic constitutional principles addressed in Perez and Loving are not and should not be limited to race, but can and should be universally applied to any state effort to deny people the right to marry the person they love." – NAACP Legal Defense and Education Fund Inc. amicus brief

For last year's 40th anniversary of the U.S. Supreme Court's Loving v. Virginia decision (that ended the national ban on interracial marriage), the NAACP Legal Defense and Education Fund Inc. issued a news release that stated, "Sadly, 40 years later, there are still legal obstacles which prevent some from marrying the person of their choice. The basic 14th Amendment principles applied in Loving should be applied to any state effort to deny any person the right to marry the person he or she loves. It is undeniable that the experience of African Americans differs in many important ways from that of gay men and lesbians; among other things, the legacy of slavery and segregation is profound. But differences in historical experiences should not preclude the application of constitutional provisions to gay men and lesbians who are denied the right to marry the person of their choice."

The NAACP Legal Defense and Education Fund Inc.'s amicus brief states "in an historic step forward – a step that at the time was the subject of bitter controversy, but now seems obvious – this court struck down this lasting and notorious vestige of discrimination, holding that anti-miscegenation laws violate the constitutional guarantees of both due process and equal protection. ... There is no reason for this court to treat marriage between persons of the same sex any differently than it treated interracial marriage in Perez."

Furthermore, this amicus brief references a U.S. Supreme Court case that cites Loving should not be limited to race but also supports the right to marry; in Zablocki v. Redhaill, the U.S. Supreme Court called Loving the "leading decision of this court on the right to marry."

Lawrence v. Texas decision: "[The Framers of the U.S. Constitution] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search of greater freedom." Now is the time...

Complete amicus briefs for the CA NAACP, NAACP Legal Defense and Education Fund, and Howard Civil Rights Law Clinic can be found via the web at:,, and

The California NAACP is part of a national network of more than 2,000 NAACP affiliates covering all 50 states and the District of Columbia. Founded in 1909 by a group of black and white citizens committed to social justice, the NAACP is the nation's largest and strongest civil rights organization. The California NAACP boasts 72 branches and youth units mobilized across the state to help ensure racial justice and equality. For more information, go to

NAACP Legal Defense and Educational Fund, Inc. was founded in 1940 under the leadership of Thurgood Marshall. Although LDF's primary purpose was to provide legal assistance to poor African Americans, its work over the years has brought greater justice to all Americans. For more information, go to

The Civil Rights Clinic at Howard University School of Law engages in trial and appellate impact litigation in the service of social justice, economic fairness, and political equality. The clinic litigates on behalf of indigent, prisoner, and pro se clients in federal and state courts on a range of civil rights matters, including but not limited to employment and housing discrimination, voting rights, police brutality, unconstitutional prison conditions, habeas corpus, and unfair procedural barriers to the courts. For more information, go to

Marriage Equality USA is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

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