Earl Warren: Homophobe

Sandy Levinson

I attended an excellent conference at the Yale Law School this past weekend, justifiably celebrating the publication of A Republic of Statutes: The New American Constitution, by William Eskridge and John Ferejohn. It argues, among many other things, that one simply cannot understand the American constitutional order if one ignores the "constitutive character" of what they call various "superstatutes" thoughout our history that have shaped that order and, for all intents and purposes, are as "hard-wired" as many of the specific clauses that we ordinary identify as "the Constitution." They are making an extremely important argument that deserves to be debated at length, as it certainly will. (For obvious starters, even if it is spectacularly unlikely that the Social Security Act will in fact be repealed, it would presumably be far easier to do that than to repeal, say, the "Inauguration Day Clause" of the 20th Amendment and replace it with something far more sensible than January 20.) But this obviously doesn't explain the title of my posting.

One of the chapters is about "The Anti-Homosexual Constitution and Its Dis-Entrenchment," which is extremely illuminating. One of the things I learned is the extent to which Earl Warren as the "liberal" governor of California, not only advocated the roundup legitimized in Korematsu, which is well-known and discussed by all of Warren's biographers (as something that must be "explained" even if not justified), but also participated in the efforts to engage in what might well be called the legal terrorization of gays and lesbians in California in the '40s. I was totally unaware of this. I suggested that the lack of attention previously paid to this aspect of Warren's career is evidence of the extent to which "we" simply accept as "normal" the repression directed at gays and lesbians until all too recently in our history.

I suspect that many would regard it as "unfair" to single out Warren for criticism, in the same way that one might regard it as equally unfair to note that some given denizen of Victorian England was anti-Semitic or the like. One expects more of Warren with regard to race and ethnicity in the '40s because, after all, there were groups actively fighting for their liberties. But there were no such "gay and lesbian rights" groups in that era, because to have expressed even public sympathy, let alone to come out oneself, would have exposed oneself to far greater risk than was the case with regard to, say, expressing sympathy for the ACLU or, in the North, the NAACP. Still, it was disconcerting, to put it mildly, to read some of Warren's comments (and the information about several distinctly regressive opinions involving gays and lesbians that are part of the "Warren Court legacy").

One of the striking arguments made by Eskridge and Ferejohn, incidentally, is that the country wasn't really ready for an opinion going the other way in Bowers v. Hardwick, any more than a 1956 decision in Naim v. Naim striking down bans on interracial marriage would have been generally accepted. (They therefore endorse what many see as the Supreme Court's cowardice in that decision, when it basically lied through its teeth about lacking jurisdiction in the case to avoid deciding it the only way that it could have been decided, after Brown, and, of course, the way it was decided 11 years later in Loving v. Virginia, in a decision written by Warren himself.) And they remain decidedly ambivalent about the current litigation in California, hoping that the Ninth Circuit will accept an argument hade in an amicus brief authored by Eskridge to uphold the District Court decision in Peary by focusing on specifics of California's legal regime (so that it is truly arbitrary to deny the right to marry given that specific regime) rather than attempt to decide the issue nationally at this time. One way of describing this position is that this is a time for carefully prudential decisionmaking rather than engaging in foolhardy "courage" that could well provoke a truly unfortunate backlash.

It's an exceptionally interesting book in all sorts of ways, including, of course, putting in a fascinating context the attempts by conservative Republicans on the bench to kill the new medical care bill before it, too, becomes "entrenched" within our constitutional order.
Posted 10:37 PM by Sandy Levinson [link]