an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Martin Luther King, Jr., whose birthday is celebrated today, and civil rights litigator Thurgood Marshall, were rivals in the 1960s, and are often thought of through the lens of conflict within the civil rights community. But there were important moments when the two came together. It was not just that the NAACP and the Legal Defense Fund represented King, for example during the Montgomery Bus Boycott. In 1964, Marshall, who generally supported legal change rather than civil disobedience, himself demonstrated on behalf of King’s philosophy of social change.
The occasion was the 1964 triennial national convention of the Episcopal Church, held in St. Louis, Missouri. Marshall was the first African American delegate from the New York diocese to attend. The conference honored Martin Luther King Jr., who was about to leave for Norway to receive the Nobel Peace Prize. King addressed the convention, calling upon Episcopalians to help with the civil rights struggle in the South. Most applauded, but some white delegates refused either to stand for King or to applaud. The trouble occurred afterward at the House of Deputies meeting, when a resolution was introduced that spoke to the principles of King’s philosophy of nonviolent civil disobedience. The resolution “recognized the right of persons to disobey segregation laws that are in ‘basic conflict with the concept of human dignity under God.’” Civil disobedience had to be nonviolent, done only after “earnestly seeking the will of God in prayer.” Many in the clergy supported the proposal, but a number of lay delegates opposed it. “This is the first time in all of the history of this church that we have been asked to take a position that recognizes the right of people to disobey the law,” a Minneapolis delegate complained. “This is the way to chaos.” Reverend Gordon E. Gilett of Illinois responded: “One of my ancestors picked up a musket at Lexington and fought the British and I am certain we agree that was one of the greatest acts of civil disobedience.” When the measure came to a vote, it had the support of a majority of the clergy but did not receive enough support from lay delegates. The resolution was rejected. In protest, Marshall walked out.
Marshall’s walkout made headlines in New York and St. Louis. The Right Reverend Horace W. B. Donegan, bishop of the Diocese of New York, was “distressed” over the “unfortunate” incident and urged Marshall to stay. But Marshall was upset and angry. Then, the St. Louis Globe-Democrat blasted Marshall for his walkout:
Here is a Federal judge, the very embodiment of our law, acting as though he had turned in his judicial robes for a pair of sneakers and a CORE sweatshirt. The spectacle is ludicrous and not a little hypocritical.
This is a man who sits upon the United States Circuit Court of Appeals asking his church to encourage followers who violate selected laws “for reasons of conscience.”
The terrible danger of such an official endorsement of civil disobedience is that it leaves to the individual to judge what laws to violate, and individuals have differentideas of “human dignity under God.”
This endorsement would have been an invitation to anarchy!
George L. Cadigan, bishop of Missouri, defended Marshall and publicly apologized on behalf of his city and his diocese, the host of the conference. Cadigan thought the attack on Marshall in the Globe-Democrat was unfair and ignored Christian teachings. The departure of Marshall, “our distinguished brother in Christ” was “a judgment on us all.”
Marshall was very angry when he got home to New York. But after sparking this controversy, he refused to comment on it. Reached at home in Manhattan, he told a reporter, “I just came out of there, that’s all. There are no conclusions to be drawn from that.”
There were important differences within the civil rights movement, and between Marshall and King. But just as the civil rights era changed America, it changed its participants. Perhaps King's national holiday is an appropriate time to reflect on the way, across what we usually think of as a divide between the movement and the lawyers, one leader supported another's message.
Another putative rival of King's was of course Malcolm X, yet it seems these two giants may have held visions that were "complementary" and perhaps "moving toward convergence:' See James H. Cone's wonderful study, Martin & Malcolm & America: A Dream or a Nightmare (Maryknoll, NY: Orbis Books, 1991).
In a comment to a post on King by Frank Pasquale at Concurring Opinons I suggest a few titles that help to "situate" King's contributions to the civil rights movement and the struggle for social justice.