The Expanding Ash Heap of History

by Buchanan Ingersoll & Rooney PC

This year marks the 60th anniversary of the historic United States Supreme Court decision in Brown v. Board of Education of Topeka. The court overturned the precedent established in Plessy v. Ferguson, which upheld that substantially equal facilities for races amounted to equal treatment. The Warren court found that the “separate but equal” doctrine, established in 1896, had no place in public education due to the fact that separate facilities are inherently unequal. Furthermore, the court believed that “whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson”, the holding of Brown v. Board was “amply supported by modern authority.” Thus, “separate but equal” was tossed into the ash heap of history and justifiably so.

Prior to Brown v. Board, educational segregation was the law in 17 states, mostly in the South. Moreover, in 1940, 14 years before the decision in Brown v. Board, only 30 percent of Americans believed that children of different races should attend the same schools. By 1956, fewer than two years after Brown v. Board, that number skyrocketed to 49 percent. Those once in favor of “separate but equal” became immersed in a different society and, ultimately, came to the same understanding as Justice Harlan did in his dissenting opinion in Plessy v. Ferguson, that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

In 1955, shortly after the decision in Brown v. Board, the Commonwealth of Pennsylvania passed its Human Relations Act. In that Act, it became illegal in Pennsylvania to discriminate against a person based on gender, religion and race. Thus, in the years following the seminal case of Brown v. Board, the legislature acted on that precedent to strengthen the laws prohibiting racial discrimination in Pennsylvania.

On May 17, 2004, Massachusetts became the first state to legalize and recognize same-sex marriages. Currently, 32 states and the District of Columbia have declared the prohibition of same-sex marriages unconstitutional. Included on the list of progressive states is Pennsylvania, which only three days after the 10-year anniversary of Massachusetts’ decision, found the state’s marriage laws violated the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In Whitewood v. Wolf, the Honorable John E. Jones III wrote:

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition unconstitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of “separate but equal.”

One month after Judge Jones’ decision in Whitewood v. Wolf, a poll found that for the first time, a plurality of voters in Pennsylvania supported gay marriage: 48 percent in favor, 44 percent opposed. Nearly three years before, those numbers were 36 percent in support of gay marriage and 52 percent who believed gay marriage should remain illegal. Decades from now we will reflect on Judge Jones’s words and recognize that he was correct when he said the label “same-sex marriage” will seem obsolete and only the term “marriage” will remain.

Legal discrimination, however, is still alive and well in Pennsylvania. Employers may fire and accommodation may be denied to someone just because he or she is gay. The LGBT community in Pennsylvania currently has no right to freedom from discrimination in employment, housing and public accommodations. This denial of equal protection of the laws, guaranteed by the Equal Protection Clause of the Fourteenth Amendment, perpetuates the same type of inequality and discrimination present during the Civil Rights Movement in the mid-1900s.

Currently, 34 municipalities within the Commonwealth already have non-discrimination ordinances that provide protections based on sexual orientation. There is legislation pending before the Pennsylvania Senate and House of Representatives (S.B. 300 and H.B. 300) that would amend the PHRA and prohibit discrimination based on “sexual orientation” and “gender identity or expression.” The first bill to propose prohibiting discrimination based on sexual orientation and gender identity or expression was introduced several years ago with only two co-sponsors. H.B. 300 and S.B. 300 have 123 bi-partisan co-sponsors, representing the 70 percent of Pennsylvanians from all walks of life who believe in ending such discrimination. Following a similar trend in the country at the time of Brown v. Board, people recognize how quickly society can and should change and be changed.

A 2005 study found that school desegregation fundamentally changed the people who lived through it, and students became less racially prejudiced and more comfortable around people of different backgrounds. The most prominent finding was “the value of school desegregation in shaping [students’] views about race and helping them overcome fear and distrust of people who were different.” As Pennsylvania and the rest of the country accept the LGBT community and even the marriage of same-sex couples, citizens will become more familiar with and accept their fellow citizens without judging them based on sexual orientation.

A heterogeneous society that includes people of all races, genders and sexual orientation will pave the way toward true equality – equality where, as noted by Judge Jones, the concept of same sex marriage will eventually be replaced simply by marriage. It is easy to see how equal treatment of gay and transgender people will become a fundamental part of society, much like that which was achieved in the years leading up to and succeeding the decision in Brown v. Board, resulting in a country where all people are united and equal, regardless of race or sex orientation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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