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excerpted from: Taunya Lovell Banks, Thurgood Marshall, the Race Man, and Gender Equality in the Courts, 18 Virginia Journal of Social Policy and the Law 15 (Fall 2010) (124 Footnotes) (Full Document)


TaunyaLovellBanksThurgood Marshall, the renowned civil rights lawyer, came of age as a lawyer during the black protest movement in the 1930s. He was an important force during the twentieth century black civil rights movement (the Movement) and was appointed to the United States Supreme Court as the Movement was ending. For more than half of the twentieth century, black lawyers like Marshall and his mentor, Charles Hamilton Houston, used the federal courts as the primary vehicle to pursue equal rights for black Americans. The Movement is remarkable because “a relatively powerless group” challenged, and successfully thwarted, a system of laws and practices that condoned unequal treatment based solely on race.

Not only did the Supreme Court's seminal decision in Brown v. Board of Education signal the end of legally sanctioned racial segregation, it also triggered a shift in the Movement as young black Americans increasingly employed nonviolent public protests in their push for the legal and social changes Brown seemed to promise. This shift in protest methods changed the role of civil rights lawyers from leading strategists to secondary advisers and reactive counsels. As the Movement transitioned from courtroom to street protest, Marshall represented the early civil rights protesters, albeit reluctantly. He was ambivalent about the post-Brown public protests, fearing that protests in the Deep South would trigger white violence-- which they did. Moreover, Marshall respected the rule of law and thus abhorred civil disobedience as a tactic to bring about social change.

The second phase of the Movement was relatively short. The mass protests of the early 1960s triggered congressional action, notably the 1964 Civil Rights Act and the 1965 Voting Rights Act. By the late 1960s black Americans had greater political clout and did not need the courts as much. Although its heyday was past, the Movement had become “a model for other protest movements” in the United States and the world.

President Lyndon Johnson announced Marshall's nomination to the Court on June 13, 1967, the day after the Court in Loving v. Virginia, struck down Virginia's anti-miscegenation law, the last major vestige of the racial apartheid era. That same year, President Johnson issued Executive Order 11,375, which extended affirmative action to women and outlawed sex discrimination in federal employment and in companies with federal contracts. Three years earlier, Congress had enacted a comprehensive civil rights bill that, among other things, prohibited discrimination in employment based on race, color, religion, national origin, or sex and created the Equal Employment Opportunity Commission (EEOC). Equal rights for women--the elimination of gender apartheid--rather than racial equality would soon occupy the Supreme Court's agenda.

As a result of his experiences, Marshall, like other Movement lawyers, formed strong ideas about the rule of law and equality under the law. He brought those ideas with him to the Supreme Court. According to one study, between 1971, when the Court in Reed v. Reed invalidated on equal protection grounds a state law preferring men over women as administrators for estates, and 2002, the Supreme Court decided forty-one cases involving gender employment discrimination claims. Most of these cases were decided while Marshall was on the bench. Yet when scholars discuss Marshall's jurisprudence on the Court, gender equality outside the context of racial equality is seldom, if ever, mentioned.

At first glance Marshall seems to have treated gender and race discrimination claims similarly because most early gender discrimination claims mirrored race discrimination claims--a point he often made in his opinions. When Marshall announced his retirement from the bench in 1991, he had voted “favorably” on ninety-two percent of the employment sex discrimination cases before the Court during his tenure--one percent more than Justice Brennan. Still, gender and race claims are sometimes in tension with each other. This article explores how Justice Marshall responded when faced with situations in which the goal of racial equality seemed to conflict with the goal of gender equality.

While the Movement championed equal rights, it focused on the advancement of black Americans as a racialized group. Although civil rights organizations relied heavily on the work of women, black and white, they denied them meaningful leadership power. Further, many black churches that supported the Movement, especially those in the Deep South, saw equality between the sexes as inconsistent with biblical teachings. Thus, while the Movement's success might have inspired advocates for women's rights, its articulated goals were not necessarily consistent with demands for gender equality.

Given this reality, Marshall's position on gender equality while on the Court is worth exploring to determine whether the great race man was able to reconcile some of the inherent tensions created when gender claims seemed to conflict with racial interests. This article looks at Marshall's judicial record in three cases in which the Court rejected gender discrimination claims when the interests of a racialized group seemed to conflict with aims of gender equality. Marshall wrote the majority opinion in two of these cases, Santa Clara Pueblo v. Martinez and Florida Star v. B.J.F., and failed to join a concurring opinion in the third, Alexander v. Louisiana.

The next section briefly discusses Marshall's general attitudes toward gender equality before examining the potentially troubling inferences these cases raise about whether his stand on the issue was consistent with his equalitarian principles.

Part III discusses The three sex discrimination cases discussed in the next section do not involve employment discrimination. Marshall's troublesome position in these cases is attributable to other experiences living and working under racial apartheid laws.

. . .

Around the time Marshall stepped down from the bench, Constance Baker Motley publicly acknowledged his “unique contributions to the advancement of women in the law,” noting that he “had no qualms about women being given equal employment opportunities. . . . If it had not been for Thurgood Marshall, no one would ever have heard of Constance Baker Motley.” In her tribute to Marshall, Motley writes, “[N]obody had to tell him that African-American males were on the bottom rung of the ladder in every conceivable professional endeavor and that African-American women were not even on the ladder.” Her comments suggest that Marshall, perhaps intuitively, recognized the intersection of race and gender, especially in the workplace. Nevertheless, during the years that Marshall and Motley overlapped at LDF, it was, like most legal organizations of the time, a “boys' club.” Robert Carter, reflecting on those early years, writes, “[T]he absence of women from that inner circle of cooperating lawyers and law professors is evident to me, but it never crossed my mind then.”

When Marshall left LDF he selected Jack Greenberg, a white male, rather than Constance Baker Motley, a black woman, as his successor. One can only speculate as to his reasons for preferring a white man over a black woman to lead a civil rights organization primarily devoted to black civil rights. Motley once described Marshall as a “complex person” who did not think it strange that a woman was a lawyer. But he might have thought it strange to have a woman lawyer lead the premier civil rights legal arm in the years immediately following Brown v. Board of Education.

Marshall's record on gender equality while on the Court is stronger than the record of its then sole female member, Sandra Day O'Connor. He consistently supported women's employment and reproductive rights, but he also seemed willing in cases like Martinez and Florida Star to sacrifice individual rights for larger community goals. Arguably, his failure to join Justice Douglas's concurrence in Alexander can also be explained this way: Marshall sacrificed the rights of black and white women to serve on juries to protect black defendants from racially biased jury pools.

If there were any inconsistencies in his approach to gender discrimination claims, they probably never crossed his mind. He was, after all, a man who had grown up in a time when women were generally absent from the public sphere. While not antagonistic to the idea of gender equality, Marshall seemed most concerned about racial equality, perhaps because it encompasses both women and men, during an era when an ideology of white male supremacy reigned in the country.

Without question, Thurgood Marshall was a race man, but he was also a friend to women, even though many might not classify him as a feminist. Perhaps he is better described as a “pragmatic feminist,” informed by his experience in the South and cognizant that meaningful equality for black Americans required equality for black men and black women. Thurgood Marshall, although a progressive man for his times on gender issues, was still a product of those times. Nevertheless, women in the United States are better off today because he sat on the Supreme Court at a crucial time in women's twentieth century social and legal history.

Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law.