On Friday, a federal judge allowed Virginia to intervene in ongoing litigation over Donald Trump’s Muslim ban in order to protect Virginians who might be detained, deported, or denied re-entry under the executive order. The state’s complaint eloquently explains why the ban infringes upon immigrants’ due process and equal protection rights while violating the First Amendment’s Establishment Clause. But its most striking section arrives at the end when the state invokes Justice John Marshall Harlan’s famous dissent from the Supreme Court’s decision to uphold segregation in Plessy v. Ferguson:
This is a monumental case involving a monumental abuse of Executive Power. So it is worth remembering another monumental case, Plessy v. Ferguson, that enshrined in American law—for more than a half century—the approval of government-mandated racial segregation. The majority in Plessy reasoned that government-mandated segregation “does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens.” We admire the first Justice Harlan for putting the lie to that claim: “Every one knows” what was being justified, he said. The same is true here.
And what Justice Harlan said next may be even more important for Twenty-First Century Americans to remember: “the seeds of race hate” should not be “planted under the sanction of law.”
In this case, the seeds of hate towards Muslims are “planted under the sanction” of the Executive Order. Those seeds must be rooted out, as soon as possible, lest they germinate and poison more Americans. The Executive Order was conceived in bigotry and does not reflect who we are as a people.
It is altogether fitting for Virginia to cite Harlan’s dissent here given that his words provide a constitutional through line that links the 19th-century struggle for justice with the battles we fight today. The principles Harlan expounded in 1896 are timeless and universal, and they are especially apposite to the modern campaign for equality. Justice Anthony Kennedy opened his opinion in Romer v. Evans—the first decision to protect LGBTQ rights under the Equal Protection Clause—with Harlan’s declaration that the Constitution “neither knows nor tolerates classes among citizens.” The originalist argument for marriage equality is rooted in Harlan’s conception of a Constitution that prohibits second-class citizenship on the basis of identity. After all, as Harlan wrote, “[t]here is no caste here … In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
Just as presciently, Harlan’s dissent warned that when the government discriminates on some illegitimate basis, it does not always announce its intentions. A dubious pretext often accompanies the state’s most vicious attacks on personal liberty. Segregation, the Supreme Court once agreed, was simply meant to separate the races, not to degrade nonwhites. Same-sex marriage bans, their backers insisted, were designed to encourage procreation, not demean gay people. And the Muslim ban, we now learn, is meant to thwart terrorism, not debase and banish Muslims. The pretense, of course, is as false today as it was in the 19th century. Bigotry is bigotry, no matter what deceptive words the government uses to describe it.
Mark Herring, Virginia’s attorney general, served as lead author on the state’s complaint against Trump’s executive order. Before this litigation, he was likely best-known for choosing not to defend Virginia’s same-sex marriage ban and for rolling back draconian regulations on abortion clinics. Herring’s tenure has come to be defined by his Harlan-esque decisions to value individual dignity and equality over arbitrary or insidious state discrimination. His most recent lawsuit furthers that burgeoning legacy. And with luck, it will persuade the courts to reaffirm one of our most basic constitutional principles: There is no caste here—and no president, however powerful he may believe himself to be, has the power to create one.