Underlying this draconian statute was a belief –
related to eugenics and perhaps a vestige of the 19th century pseudoscience
“phrenology” – that criminality is an inherited trait. The defendant, Jack
Skinner, had been convicted once for stealing chickens and twice for armed
robbery. Both those crimes were considered depraved enough to warrant the
special penalty.
The Arguments
After being sentenced for his crimes, Skinner to the case to the Supreme Court where his lawyers made various arguments: that the law was an unconstitutional exercise
of the state’s “police power” (the power to act for the common good), that it
was “cruel and unusual punishment,” and that Skinner had not been allowed to
contest the assertion that criminal tendencies are inherited. But those arguments were not persuasive because the court had
already decided in Buck v. Bell that sterilization for the common good
was permissible, and the procedure was not unusual because the number of them
had risen sharply in the fifteen years since Buck was decided. Besides, the Oklahoma
legislature had determined that the heritability of criminal tendencies was a fact,
so that question was moot.
The Court’s Rationale
Justice William O. Douglas had been assigned the task of writing the court's opinion, and he was undaunted by the apparent dilemma. He bypassed Skinner's arguments “without
intimating an opinion on them” and instead found “a feature of the Act which
clearly condemns it.” That feature, he said, was “its failure to meet the requirements of the
equal protection clause of the Fourteenth Amendment.”
For an example of the inequalities
in the law, Douglas pointed out that embezzlement was not covered but chicken
stealing was. Someone could be convicted of misappropriation of funds dozens of
times and not be sentenced to sterilization, but steal a chicken on three occasions
and your days of procreating were over. “We are dealing here with legislation [that]
involves one of the basic rights of man,” Douglas wrote, and when the law deals
with two similar offenses “and sterilizes one and not the other, it has made as
invidious [a] discrimination as if it had selected a particular race or
nationality for oppressive treatment.”
No member of the court dissented.
Chief Justice Harlan Fiske Stone, who admired the recently retired Justice Holmes and had
been on the court when Buck v. Bell was decided, concurred in the Skinner
decision. But he would have preferred to decide the case on “due process”
grounds and to contest whether criminal tendencies are in fact heritable.
“There are limits to the extent to which a legislatively represented majority
may conduct biological experiments at the expense of the dignity … and natural
powers of a minority,” he wrote.
It’s a nice question, by the way,
whether these thoughts might have changed the outcome for Carrie Buck.
Skinner v. Oklahoma did not
explicitly overrule Buck v. Bell and did not immediately end compulsory
sterilizations, but it was the beginning of the end for eugenics, which lost
support quickly after the atrocities of the Holocaust were discovered a few
years later. Skinner himself was eventually paroled and moved to California
where he died in 1977 at age 70, survived by his wife and a large family that
included six grandchildren and ten great-grandchildren.
Rereading the story of Mr.
Skinner reminded me of a famous aphorism by Anatole France: “The law, in its
majestic equality, forbids rich and poor alike to sleep under bridges, beg in
the streets, or steal bread.”
More Injustice Corrected
As Buck and Skinner
demonstrate, the US is not always known for tolerance, but sometimes things
change. A third example reinforces the point.
Under its “Racial Integrity Act
of 1924,” the Commonwealth of Virginia decreed that marriages between “a white
person and a colored person” were illegal. It was also made illegal to leave
the state to evade the law and thereafter return to Virginia “and reside in it,
cohabiting as man and wife.”
The law was still on the books in
1958 when Mildred Jeter and Richard Loving, a mixed-race couple, left Virginia
for DC where they were wed. When they return to the Old Dominion and began to
live together they were indicted, convicted, and sentenced to a year in jail.
But the trial judge suspected their sentence if they would agree to leave the
state and not return for 25 years.
In announcing punishment, the
trial judge wrote:
Almighty God
created the races white, black, yellow, Malay and red, and he placed them on
separate continents. And but for the interference with his arrangement there
would be not cause for such marriages [as Mildred and Richard’s]. The fact that
he separated the races shows that he did not intend for the races to mix.
Thusly does the Holy Bible
supersede the US Constitution, in at least one jurist’s mind. But Mildred and
Richard did not agree. They promptly filed suit to challenge the law as a
violation of their rights under the Fourteenth Amendment.
In a unanimous decision Chief
Justice Earl Warrant wrote,
The clear and central purpose of the Fourteenth Amendment
was to eliminate all official state sources of invidious racial discrimination
… [and] there can be no question but that Virginia’s miscegenation statutes
rest solely upon distinctions drawn according to race. …
We cannot conceive of a valid legislative purpose [that]
makes the color of a person’s skin the test of whether his conduct is a
criminal offense.
There is patently no legitimate overriding purpose … which
justifies this classification. The fact that Virginia prohibits only
interracial marriages involving white persons demonstrates that the racial
classifications [are] designed to maintain White Supremacy.
Accordingly, more than a century
after the Civil War and ratification of the Fourteenth Amendment, the Supreme
Court finally struck down a de jure (legally recognized) vestige of
racial inequality in the US. Bigotry and de facto inequality still
remain, of course. Only time and tolerance (not judicial edicts) will
change minds and hearts.
Legal Titans
Like Oliver Wendell Holmes and
William O. Douglas, Earl Warren is a giant of American jurisprudence. His
rhetoric never reached Holmesian heights, but his monumental decisions changed
a nation: Brown v. Board of Education (calling for school
desegregation), Hernandez v. Texas (giving Mexican-Americans the right
to serve on juries), and Miranda v. Arizona (requiring warnings for
persons being interrogated by the police) are just three of the landmark cases decided during Warren’s tenure. So controversial were many of these decisions
that in the 1960s there was a grass-roots movement to impeach him, especially
in the Old South.
Warren retired from the court in 1969, and by then the
country had moved on to other issues. Today he is perhaps best known as the
head of the “Warren Commission,” which investigated the assassination of
President Kennedy.
It is ironic that Earl Warren
came to be reviled by many conservatives. He was appointed to the court by
President Eisenhower in 1953 precisely because of his apparent conservatism. It
was an appointment Ike would live to regret, just as he would regret the
appointment of William Brennan in 1956. It is reported that upon leaving office
Eisenhower was asked if he ever made a mistake while President. “Just two,” he
supposedly replied, “and they’re both sitting on the Supreme Court.”
Mistake or not, Earl Warren sat
on the High Court with some of the twentieth century’s most distinguished
jurists: Brennan, Douglas, Hugo Black, Felix Frankfurter, and Thurgood
Marshall, to name just a few. And he had a profound effect on the lives of
millions of Americans. Among them were the couple whose names head what is
perhaps the most aptly named Supreme Court decision of all time: Loving v.
Virginia.
The state’s tourism slogan was adopted in 1969, two years after
that decision.
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