Yesterday, October 15, 2020, the Washington State Supreme Court issued an opinion in which it (again) shot down the Car Tabs Initiative as unconstitutional for violating the single issue rule. But the court did much more than that in a footnote. In footnote 1, on page 13, of yesterday's opinion, the court overruled a 1960 Washington State Supreme Court opinion that upheld a cemetery's refusal to allow Black parents to bury their stillborn child in the all-white "Babyland" section of the largest Seattle cemetery. This was long overdue, but Washington's High Court went even further by calling out prior Justice Joseph A. Mallery by name for his racist concurring opinion, "which condemns civil rights and integration."
Here's the text from footnote 1:
We take this opportunity to overrule this court’s opinion in Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 357 P.2d 702 (1960). We may overrule a prior case when it is both incorrect and harmful. Deggs v. Asbestos Corp., 186 Wn.2d 716, 727-28, 381 P.3d 32 (2016) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)). Price is both. Price considered the constitutionality of a 1953 law that said, “It shall be unlawful for any cemetery under this act to refuse burial to any person because such person may not be of the Caucasian race.” LAWS OF 1953, ch. 290, § 53, at 838. Section 53 was part of a larger bill with the title “AN ACT relating to the regulation of cemeteries.” Id., ch. 290. The majority concluded the bill had two subjects in violation of article II, section 19: “(1) civil rights, and (2) the endowment care funds of private cemeteries and the creation of a cemetery board.” Price, 57 Wn.2d at 354. This was a strained and incorrect way to divide the subjects in the bill, all of which were germane to the subject of cemetery regulation. It is harmful for two reasons: first, because it suggests a more stringent standard than is required to survive an article II, section 19 challenge, second, and more importantly, the case is harmful because of Justice Mallery’s concurrence, which condemns civil rights and integration. Id. at 355-58. “As judges, we must recognize the role we have played in devaluing black lives.” Letter from the Wash. State Supreme Court to the Members of the Judiciary and the Legal Cmty. 1 (June 4, 2020) (addressing racial injustice). The Price concurrence is an example of the unfortunate role we have played.
I include a link where interested readers can download Price v. Evergreen Cemetery Co. of Seattle to read for themselves this clear example of institutional racism and its racist concurring opinion by Justice Mallery, whom history will rightly condemn as a racist. If you need more proof of institutional racism in America, read the dissenting opinion of Justice Mallery, who sat on the Washington State Supreme Court from 1942 to 1962, in Browning v. Slenderella Sys. of Seattle, 54 Wn.2d 440, 341 P.2d 859 (1959).
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