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Martin Recalls The Supreme Court 34 Years Ago

Jose Luis Magana

Finally, the pictures of people camping out in the cold outside the Supreme Court, so they could get in to hear the oral arguments on marriage equality, brought back memories for me.

You might not believe this, but on this very day in 1979 my buddy Dave and I walked into the court after having done the same thing — although I confess we weren't as smart about it as the people were this week. We had nothing — no tent, no tarp — just our notebooks and some hot tea we bought at the train station.

We were motivated by a con law course we were taking. A professor had mentioned that the case would be argued during spring break. So literally on the spur of the moment, we jumped on a train from Boston the night before and walked over to the front steps and sat down and waited. It was almost as cold as it was this March, and since we had brought nothing to sit on or sleep on, we had to sit up — literally sit up — all night.

We were so cold and tired that when we finally did get into the court the next morning and got our seats, and got warm, we had to keep elbowing each other to stay awake. To this day I still have that notebook and can't read a word I wrote.

But still, it was a moment and an opportunity to think about then and now. The case we camped out to hear was also about equal opportunity — not to marry, but to succeed. Steelworkers v. Weber. It was a case about affirmative action.

The Steelworkers and Kaiser Aluminum & Chemical Corp. had voluntarily created a training program to remedy the fact that there were almost no African- Americans doing skilled craft work at Kaiser. Fewer than 2 percent at one plant, despite the fact that it was located in an area that was 40 percent black. That's because, at the time, Kaiser only hired workers with experience, which was impossible for black workers to get.

The training program, was supposed to fix that, to level the playing field. It was meant to be temporary and to last only long enough to get more blacks into the pipeline. And it did that by admitting white and black applicants on a 1-to-1 basis. But when a 32-year-old white man named Brian Weber didn't get in, he sued arguing that he had been discriminated against.

The lower courts agreed with Mr. Weber, but the Supreme Court did not. A five member court majority found that the program was lawful because, as then Justice Brennan said, outlawing racial discrimination was not meant to bar every effort to overcome it. Chief Justice Burger's dissent was also memorable; where he argued that were he a member of Congress he might vote for such a program, but he could not, and he warned judges, quoting former Supreme Court Justice Benjamin Cardozo, to beware of the quote- unquote "good result" and exceeding their authority to achieve it.

What a difference a couple of decades makes. Was there a "good result?" Kaiser is still around, still making aluminum. I couldn't help but notice that the company has an African-American man on its board of directors — who has four degrees from Stanford, by the way.

But just as it may have been hard then to imagine gay people suing for the same rights and benefits of marriage, it is nearly impossible now to imagine a serious conversation among national leaders about any method of accelerating access to opportunities for people who have been left behind — especially if race is a part of the conversation.

Much has been made of how the needle has moved on public opinion for same sex marriage. Can I just tell you, too little is being made, it seems to me of how little progress we are making now on advancing the life prospects of poor people and minorities.

Studies have shown that white men with criminal records have better employment prospects than black men without them; during this recession African American men with college degrees have been twice as likely to be unemployed as similarly educated white men. And let's not even talk about incredible loss of wealth that many Americans in general, but minorities in particular, have experienced in recent years.

I don't know what happened to Brian Weber. I hadn't found him in the time before I wrote this. But I also wonder about the children of all those people who stood behind the gates of Kaiser Aluminum, all those decades ago, but never got inside, never even got the chance to compete to get even a toehold into the middle class.

And I don't know how the high court will rule on same-sex marriage, but it seems that the court of public opinion has already ruled. Yet the jury is still out on how to rectify the centuries of exclusion from the basic opportunities to be a part of the American dream.

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