WASHINGTON — For civil rights advocates, the Supreme Court's landmark Brown v. Board of Education ruling banning racial segregation in public schools was ground zero, the beginning of America's modern struggle to achieve legal and social equality for blacks.
But Brown, which marks its 50th anniversary May 17, also was a catalyst for changes that have extended far beyond the realm of racial progress. It was an unusually bold assertion of the court's moral authority, and confirmed the notion that the justices could protect the rights of a discrete and unpopular minority even in the face of overwhelming public opposition.
The historic decision was the genesis of a line of rulings that could be called the high court's conscience cases, affirming everything from women's and gay rights to legal protections for children born out of wedlock, criminal defendants and resident aliens.
Brown itself may have been about blacks and their quest for a remedy for centuries of discrimination, but its legacy has been about equality for all Americans.
"Brown represents the Supreme Court's modern-era realization of just how great its moral authority can be," said David Garrow, a constitutional law and civil rights expert. "The fact that the court asserted that authority in Brown, and it was accepted by most Americans even though many didn't agree with it, allowed the court to hand down many other cases that affirmed rights for other groups."
Garrow said Brown was the forerunner to cases such as Roe v. Wade, the 1973 ruling recognizing a woman's right to an abortion, Miranda v. Arizona, the 1966 opinion that protects criminal suspects from unfettered police interrogations, and Levy v. Louisiana, a 1968 opinion that prevented states from granting fewer rights to children born out of wedlock. In Levy, the five illegitimate children of a murdered woman tried to sue for her wrongful death but were denied the opportunity because a state law disqualified children born out of wedlock. The court called it irrational discrimination.
"The rule of Brown is that the government cannot subject any group of people to unequal treatment under the laws, even if the reason for doing so is some kind of morality," said Robert Sedler, a Wayne State University law professor who has argued many civil rights cases. "The court defined the meaning of equality in Brown."
More recently, the thinking in Brown has propelled important high court rulings against anti-gay laws. In two opinions written by Justice Anthony Kennedy, Romer v. Evans in 1996 and Lawrence v. Texas in 2003, the court outlawed statutes that prevented homosexuals from receiving legal protection as a class and laws that criminalized gay sex. Both owe their logic almost entirely to Brown's principles, as does the controversial Massachusetts Supreme Judicial Court decision legalizing gay marriage, Goodrich v. Department of Public Health.
"An America without Brown would be an America without Romer, Lawrence or Goodrich," Garrow said. "It's an America without the broad equality we understand today."
Before Brown, the court's — and America's — understanding of equality was quite different.
After ratification of the 14th Amendment in 1868, the Supreme Court often seemed more concerned with protecting privileged majorities from the impositions and social inconveniences of equality. The most famous ruling in that vein came in Plessy v. Ferguson, the 1896 case that Brown eventually overturned.
In Plessy, the justices acknowledged that the 14th Amendment required equal accommodations for black and white Louisiana rail passengers but said it didn't prevent segregated accommodations. The court went out of its way to assert that blacks weren't the "social" equals of whites and that the law could provide them equal political rights without upsetting a social balance that favored whites.
That thinking carried through to the preservation of segregated schools and prevented other groups from attaining equality of their own under equal-protection laws.
Then in 1938, in an otherwise unremarkable case called U.S. v. Carolene Products, Justice Harlan Fisk Stone inserted a footnote in the court's opinion that would serve as the foundation for Brown and all the rulings it would inspire.
Stone's footnote "basically says the court should take a more aggressively protective role where government action disfavors discrete and insular minorities," Garrow said. "That footnote is the beginning, really, of modern equal protection."
Within a few years, the court began attacking the social segregation it had protected since the post-Civil War era. In 1938, it outlawed state enforcement of housing covenants that excluded blacks. It ruled in 1944 that all-white primaries were just as unconstitutional as attempts to stop blacks from voting in general elections. And as precursors to Brown, the court struck down Texas and Oklahoma provisions that kept blacks and white separate in university settings.
When Brown was decided, it was the court's most dramatic blow to date against the social status quo, and it wasn't struck without resistance.
Segregationists decried the ruling as the product of a tyrannical court bent on imposing its own morals on the people it was supposed to serve. Critics of the ruling called it "judicial activism," a term that's no longer associated with Brown but is frequently leveled against many of the rulings that followed it.
In particular, the recent gay rights decisions have been decried for running too strongly in opposition to popular sentiment.
Justice Antonin Scalia, in a scorching dissent from the 2003 high court decision that overturned laws banning sodomy, noted the court's disregard for public opinion.
"Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as Scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," Scalia wrote. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The court views it as 'discrimination,' which it is the function of our judgments to deter."
Sedler said Scalia and other critics of judicial activism were careful in their criticisms of the post-Brown decisions not to criticize Brown itself, which has gained tremendous popular support in the 50 years since it was decided. But it's difficult to break the line of cases, he said.
"It all goes back to Brown," he said. "The court was attacking the unequal treatment of the minority group by the majority, and they said it was just plain wrong. That carries forward in so many of these cases." But Roger Pilon, vice president for legal affairs at the Cato Institute, a libertarian research center in Washington, said the line of cases following Brown were inconsistent: Some have properly applied its equal-protection doctrine, but others have gotten it wrong.
"To this day, the court still does not have a well-worked-out theory of rights that is consistent with the Constitution," Pilon said. "One could say that the court had it wrong up to Carolene Products, but after Carolene Products the court had it wrong again, but for different reasons."
Griswold v. Connecticut, for example, properly acknowledged the right of married couples to buy contraceptives as a function of constitutional privacy, Pilon argued. But Roe v. Wade, which followed on Griswold's logic, improperly obliterated the rights of unborn children to be protected by government, he said.
Similarly, the court's recent cases upholding affirmative action were off-base, Pilon said, because they wrongly elevated the goal of diversity above protections against any government determinations on the basis of race.
Pilon said other cases were more purely consistent with Brown's thinking, such as Loving v. Virginia, a 1967 ruling that struck down laws against interracial marriage, and Troxel v. Granville, a 2000 case that affirmed the rights of parents to control their children.
The gay rights decisions, while unpopular with many conservatives, are exactly the kinds of rulings the court should be issuing, according to Pilon.
"When conservatives ask where we see rights to gay sex and gay marriage in the Constitution, they misstate the fundamental principle of the Constitution," Pilon said. "The equal-protection clause is essentially a 'government shall not discriminate' clause. If the government grants benefits to one group of people, it cannot deny them to another group for irrational reasons."
If not for the court's actions in Brown, that principle might not have come to mean so much to so many Americans.