Office of Attorney General Formally Overrules Past Opinions that Upheld or Applied Racially Discriminatory State Laws; Office Reviewed Opinions Dating Back to 1916 to Determine if They Upheld or Applied the View that Maryland Could Restrict Interracial Marriage, Impose Segregation

by MCS Staff

In an official opinion addressed to Maryland General Assembly leaders, Maryland Attorney General Brian E. Frosh formally overruled prior opinions of the Attorney General of Maryland that upheld or applied racially discriminatory Maryland laws that were later found to be unconstitutional.

Specifically, Attorney General Frosh found that many former opinions by the Office explicitly or implicitly relied on two discriminatory legal principles: 1) the restriction of interracial marriage by the State of Maryland and 2) the doctrine of “separate but equal” in public facilities, especially public education.

“In years past the Office of the Attorney General issued opinions that upheld racially discriminatory laws in our state,” said Attorney General Frosh. “The laws were abhorrent and ultimately held to be unconstitutional. We hope that our opinion today will help remove the stain of those earlier, harmful and erroneous works. We will continue to fight to stamp out racism and hate in all of our work for Maryland.”

Maryland’s public education system was segregated until the Supreme Court held such segregation unconstitutional in 1954, and the State restricted certain interracial marriages until just before such laws were held unconstitutional in 1967. In more recent years, the State of Maryland and the Office of the Attorney General (OAG) have made efforts to address and mitigate the impact of these discriminatory laws. For example, the Attorney General’s Office has supported the work of addressing the State’s history of discrimination by helping to staff the Maryland Lynching Truth and Reconciliation Commission. Recently, the office issued guidance to OAG attorneys identifying strategies for incorporating principles of diversity, equity, and inclusion throughout their advice work to clients.

To acknowledge and address the Office’s past actions that might have perpetuated racial discrimination in the State, the Attorney General reviewed the official opinions of the Office dating back to the first published volume in 1916, searching for any opinions that might have applied, interpreted, or upheld racially discriminatory laws. Some of the reviewed opinions explicitly advised that racially discriminatory laws should continue to be enforced, while others applied discriminatory laws without addressing the issue of their constitutionality.

From the opinion by Attorney General Frosh to President of the Senate Bill Ferguson and Speaker of the House Adrienne A. Jones: “The U.S. Supreme Court and the Maryland courts have made clear that laws prohibiting interracial marriage and providing for the racial segregation of public schools are illegal and contrary to the values of our federal and State constitutions. Thus, the prior opinions of the Attorney General involving such laws are no longer good law to the extent that they explicitly or implicitly upheld either these discriminatory laws or the discriminatory legal principles used to justify such laws… We thus formally overrule the portions of those opinions that upheld or relied on the erroneous view that the State could prohibit interracial marriages and impose the segregation of public facilities under the doctrine of ‘separate but equal.’”

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