February 2001

Segregation as a Constitutionally Protected Right: The Legacy of Washington Supreme Court Justice Joseph A. Mallery

by Michael C. Subit
Guest Columnist

This month, we are pleased to include an article by Michael C. Subit, a member of the WSBA Civil Rights Committee. The views expressed herein are those of the author and not necessarily those of the WSBA or the committee. In honor of Black History Month, the committee sponsors publication of this article as part of a continuing series for the purpose of educating the public about the law and the legal system. — Ed.

On June 28, 2000, the U.S. Supreme Court ruled by a 5-4 margin that the First Amendment precludes New Jersey from applying to the Boy Scouts its laws prohibiting discrimination on the basis of sexual orientation.¹ Chief Justice Rehnquist wrote the majority opinion, joined by Justices O'Connor, Kennedy, Scalia and Thomas. Justice Stevens dissented along with Justices Souter, Ginsburg and Breyer. The conflict between what the majority saw as the "freedom not to associate" and the dissent described as a "free pass out of antidiscrimination laws" is not a new one. Forty years ago, this same debate played out in the Washington Supreme Court. In 2000, the issue was sexual orientation. In 1960, it was race.

Forty years ago, there was no federal Civil Rights Act preventing race discrimination. At that time, even the Washington Law Against Discrimination (WLAD) did not contain an explicit civil remedy. In Browning v. Slenderella Systems of Seattle,² the plaintiff, whom the Court described as "colored and the wife of a dental surgeon," had made an appointment by telephone for a courtesy "reducing treatment." When she arrived for her appointment, the business establishment refused to serve her because of her race. In a landmark decision, the Washington Supreme Court held 6-3 that there was an implied right of action to redress racial discrimination in places of public accommodation.³ 

Justice Joseph A. Mallery,⁴ joined by Justice Richard B. Ott, authored a dissent that can only be described today as notorious. Justice Mallery declared that the majority had "stricken down the constitutional right of all private individuals of every race to choose with whom they will deal and associate in their private affairs."⁵ After railing against the Warren Court's elimination of the "separate but equal doctrine" in public institutions, the dissent proclaimed that the "right of discrimination in private businesses is a constitutional one."⁶ According to Justice Mallery, the issue was whether any "person, whether white, black, red, or yellow, has any right whatever to compel another to do business with him in his private affairs."⁷ In the name of constitutionally protected "free choice," the dissenters also defended the right of whites to create segregated residential neighborhoods.⁸ They contended that the "right of exclusiveness" was "essential to freedom."⁹ 

Justices Mallery and Ott argued that the majority's decision violated the 13th Amendment to the U.S. Constitution (which had eliminated slavery) by requiring white business owners to open their stores to black customers. They concluded that the majority had reached the "opposite extreme" of the Dred Scott decision by "subjecting white people to 'involuntary servitude' to Negroes."¹⁰ 

One year later, in Price v. Evergreen Cemetery Co. of Seattle,¹¹ Justice Mallery reiterated his view that racial segregation enjoys constitutional protection as freedom of association. At issue was a recently enacted state law prohibiting racial segregation in private cemeteries. Justice Ott, writing for a majority of six, struck down the provision on the ground that it was enacted as part of legislation that violated the state constitution's single-subject requirement.¹² In a concurring opinion, Justice Mallery declared that:

This case demonstrates that the Negro desegregation program is not limited to public affairs. The right of white people to enjoy a choice of associates in their private lives is marked for extinction by the N.A.A.C.P. Compulsory total togetherness of Negroes and whites is to be achieved by judicial decrees in a series of Negro court actions. Browning v. Slenderella Systems of Seattle, 54 Wash. 440, 341 P.2d 859, was the opening gun of the campaign.¹³ 

Justice Mallery again argued that antidiscrimination laws placed at risk the constitutional right to freedom of association:

[Those] who have relied on the white restriction in question have acquired a right to the association of their own race exclusively. It is this specific right of segregation which this particular case in a series was brought to eliminate….This lawsuit is but an incident, the second of a series, in the over-all Negro crusade to judicially deprive white people of their rights to choose their associates in their private affairs.¹⁴ 

He claimed that the true goal of the civil rights movement was the creation of "special privileges for the Negro in private affairs."¹⁵ 

Justice Mallery recounted that, during his re-election campaign in 1960, the NAACP had urged voters to defeat him based on the segregationist views expressed in his dissent in Browning. He charged that the "N.A.A.C.P. administers massive retaliation upon judges for opinions that do not advance the Negro cause."¹⁶ He then predicted:

A victorious crusade of the N.A.A.C.P. for the special privilege of Negroes to intrude upon white people in their private affairs can only be won at the expense of the traditional freedom of personal association which has always characterized the free world. … From time immemorial the scope and extent of an individual's choice in his private affairs has been the Anglo-Saxon measure of his liberties. No individual right has been more cherished than the right to choose one's associates. … Experience has shown that an aggressive minority can frequently exact special privileges from an indifferent majority. It may be that the realization of the Negro dream of compulsory total togetherness is just around the corner.¹⁷ 

The following year, the Washington Supreme Court invalidated an amendment to the WLAD prohibiting discrimination in the sale of publicly assisted housing. In O'Meara v. Washington State Board Against Discrimination,¹⁸ a plurality of three justices found the new law violated the federal Equal Protection Clause because it banned discrimination only in publicly assisted housing. Four dissenters would have sustained the law. In a concurring opinion, Justice Mallery, again joined by Justice Ott, characterized the state antidiscrimination statute as an impermissible intrusion on the freedom of private association: "[I]f a white man refuses to sell his home to a Negro, his constitutional right not to be disturbed in his private affairs shields him from coercion on the part of the Negro."¹⁹ He described the Washington State Board Against Discrimination "as a flying squadron to be called anywhere to bargain on behalf of any disgruntled Negro who has complained against a white man."²⁰ In Justice Mallery's view, the state antidiscrimination law anticipated the "voluntary written surrender of the white man's private constitutional rights."²¹ Two months after authoring this concurrence, Justice Mallery retired from the Washington Supreme Court. He lived until 1982.

Over the past 40 years, society has rendered a condemnatory judgment on racial segregation. Today, no Supreme Court justice in this or any other jurisdiction would dare to make the arguments propounded by Justice Mallery and his supporters. Society's current struggle with the issue of equality and sexual orientation is at a stage reminiscent of the fight over racial integration circa 1960. Forty years ago, in Price and in O'Meara, the Washington Supreme Court held that the state Legislature had gone too far in prohibiting discrimination against a group hated by certain segments of the community. In Dale, the U.S. Supreme Court reached the same result. Dissenting, Justice Stevens charged the majority with homophobia and drew an explicit analogy to racial prejudice.²² Forty years from now, we will see whether history views the U.S. Supreme Court's recent recognition of a constitutional right to exclude on the basis of sexual orientation any differently from earlier decisions upholding racial segregation.

1 Boy Scouts of America v. Dale, 530 U.S. —, 120 S. Ct. 2446 (2000).

2 54 Wn.2d 440, 341 P.2d 859 (1959).

3 54 Wn.2d at 446.

4 Justice Mallery was appointed to the Court in November 1942. According to Charles Sheldon's The Washington High Bench (1992), Justice Mallery was a Winlock, Washington, native who attended Reed College and the University of Washington Law School. He had served as an assistant U.S. attorney and a judge on the municipal and superior courts in Tacoma.

5 Id. at 452-453 (emphasis in original).

6 Id. at 454.

7 Id. at 453 (emphasis in original).

8 Id. at 455.

9 Id.

10 Id. at 456-57. In Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (U.S. 1857), the U.S. Supreme Court held that black slaves could not be citizens of the United States.

11 57 Wn.2d 352, 357 P.2d 702 (1960).

12 Const. art. II, sec. 19. The bill at issue was entitled "an act related to the regulation of cemeteries." Among its other provisions, it provided for a cemetery fund and a cemetery administrative board. The majority essentially held that "cemeteries" and "civil rights" were two subjects. 57 Wn.2d at 354. Three justices dissented.

13 Id. at 355 (emphasis in original).

14 Id. at 355-56.

15 Id. at 356 (emphasis in original).

16 Id.

17 Id. at 357-58.

18 58 Wn.2d 793, 365 P.2d 1 (1961). Current Washington Supreme Court Justice Charles Z. Smith was among the lawyers who participated in the case.

19 58 Wn.2d at 806.

20 Id. at 805.

21 Id.

22 120 S. Ct. at 2477-78.

Parting the Waters: America in the King Years, 1954-63 by Taylor Branch
(paperback – November 1989)

Pillar of Fire: America in the King Years, 1963-65 by Taylor Branch
(paperback – January 1999)

The Black New Yorkers: The Schomburg Illustrated Chronology
by Howard Dodson, et al. (hardcover – October 1999)

Africana: The Encyclopedia of the African and African American Experience
by Kwame Anthony Appiah and Henry Louis Gates, Jr. (editors) (hardcover – November 1999)

My Soul Is a Witness: A Chronology of the Civil Rights Era, 1954-1965
by Bettye Collier-Thomas and V.P. Franklin (hardcover – January 2000)

Hidden Witness: African American Images from the Dawn of Photography to the Civil War
by Jackie Napolean Wilson (hardcover – January 2000)

The New York Public Library African American Desk Reference (hardcover)

The Face of Our Past: Images of Black Women from Colonial America to the Present
by Kathleen Thompson (editor), et al (hardcover – June 2000)

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