When injustice abounds, every moment is a moment of truth

The problem with doing the right thing is that there is never a good time to do it.

During oral arguments before the California Supreme Court on March 5 in the case for gay marriage, Justice Kathryn Mickle Werdegar questioned one of the lawyers for the plaintiffs who argued that it was time for a ground-breaking ruling on GLBT rights. She asked: “Why is this the moment of truth, as opposed to 10 years from now?”

Justice Werdegar’s question raises an interesting point: if the public is more accepting of gay and lesbian Americans 10 years from now, does that make gay marriage more valid in 2018 than it is today? Just because it would probably be more politically palatable to wait a decade to advocate for full equality for GLBT Americans, does that mean discrimination today is more acceptable?

In fact, the United States has a long history of postponing doing the right thing in pursuit of political convenience. Women were certainly no less capable of making sound political decision – or running for president – in 1920, when the Nineteenth Amendment gave women the vote, than they had been in 1910 or would be in 1930. African American laborers were no less deserving of sharing the same counter as their White colleagues during a lunch break in 1954, when Brown v. Board of Education declared that separate facilities on the basis of race was unconstitutional, as they had been in 1944 or would be in 1964. In all of the great civil rights decisions in our nation’s history, it would have been easier to wait 10 years for the moment of truth, but postponing still could not alter the fundamental injustice that occurred before and after.

The great thing about civil rights activists is that they never stop trying, but unfortunately it always seems to take awhile before they succeed. 60 years before Brown v. Board of Education, the U.S. Supreme Court had a significant opportunity to get racial equality right the first time around when Plessy v. Ferguson came before the bench in 1896. Four years earlier, Homer A. Plessy boarded an East Louisiana Railroad train car that was reserved for use by White patrons only; Plessy, who was one-eighth Black, refused to leave the car and was arrested and jailed. His appeal to the Supreme Court against racial segregation of public facilities ended with what has become almost universally derided as one of the most misguided legal philosophies of American history: Justice Henry Billings Brown wrote that “separate but equal” public facilities did not violate the constitutional rights of African Americans. No doubt Justice Brown considered what must have appeared to have been a massive and immovable groundswell of public opinion against integration, and he thought to himself, “Maybe we can wait another 10 years before we do this.” In the process, Plessy v. Ferguson carried out racist institutions for another 60 years, ushering in the Jim Crow era and enabling countless deaths of innocent men and women.

Plessy v. Ferguson was a convenient decision, but it wasn’t the right decision. Thanks to the courage of people like Chief Justice Earl Warren and suffragette Susan B. Anthony, it’s easy to point out today that “separate but equal” was wrong and that women have always been as capable as men to be scientists, to own property, and to vote. But the thing with history is that what comes before tends to influence what happens after. When the Supreme Judicial Court of Massachusetts legalized gay marriage in the Bay State in 2003, anti-gay protesters foretold the end of civilization. Five years later, however, Massachusetts has yet to sink into the Atlantic Ocean; what’s more, the state elected its first African American governor in 2006. If we are to strive for a better world tomorrow as Justice Werdegar seems to hope that we do, then we had better start today.

In California, we face another Plessy v. Ferguson moment in the GLBT rights movement. Again, as before, it would be easier to acquiesce to what is most politically expedient. We do live in a democracy, and popular opinion is important. But so is equality. And when the mood of the mob turns against the rights of the few, as it has for so long against gays and lesbians, it is everyone’s responsibility to raise the bulwark against intolerance. When it comes to the courts, this is not judicial activism; it is simply doing the right thing.

And there’s no better time to start than today, here, with the California Supreme Court.