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Starting Out

To love what you do and feel that it matters, how could anything be more fun?1

— KATHERINE GRAHAM

That summer of 1956, Fay and Marvin found a Berkeley apartment at the top of a large house the color of gingerbread, with a turret and rounded windows. Friends thought it characteristic of Fay to live somewhere so strikingly different. Fay particularly enjoyed reuniting with Betty Lee and Gene Pippin. Pip, since divorced from his wife Anne and involved in another relationship, was again rewriting his dissertation. Fay’s family found Marvin charming, though Fay herself resumed a sometimes prickly attitude toward her parents and her sister. Fay’s politics would always remain far to the left of her father’s.

Local headlines were then being made by a treason and sedition trial in San Francisco against a fellow Reed graduate, Sylvia Powell, and her husband John. A decade older, the Powells had been sympathetic to the Chinese Revolution and later published charges made by Chinese officials that the United States had used germ warfare against the North Koreans. Professor Sharp’s friend Charles Garry took on the Powells’ defense and got the treason charges dismissed in 1959. Attorney General Robert Kennedy would drop the remaining sedition charges in 1961. The Powells’ lengthy ostracism and legal troubles must have reminded Fay of what had happened to Stanley Moore. After he was ousted from the Reed faculty in 1954 as a Communist, Moore could only find a part-time teaching position at Barnard College. Both the Powells’ situation and Stanley Moore’s ongoing academic problems underscored why Fay had good reason to fear for Marvin when Professor Sharp had asked them to distribute fund-raising leaflets for the Rosenbergs’ two sons.

The first professional hurdle Fay and Marvin faced was the California Bar. Marvin took the expensive review course and brought the notes home for Fay to study. Sam Abrahams said that if only one of them passed the Bar, he hoped it would be Marvin, the breadwinner. Both passed on the first try and were sworn in together in December of 1956. Neither found work in private law firms. The handful of Leftist lawyers in the Bay Area were barely eking out a living for themselves. Marvin signed up to take court-appointed criminal cases and tried whatever personal injury cases he could obtain. Fay found a position clerking at the California Supreme Court.

Fay’s new job brought her into the prestigious inner sanctum of the state’s highest court to get a firsthand glimpse of how its decisions were made. From the briefs raising major civil and criminal issues that crossed Fay’s desk, she quickly learned what techniques best appealed to the justices’ individual proclivities (as Professor Llewellyn had suggested to his law school classes). In the process, she absorbed reams of California law. For Fay, it opened another door that members of the public and most lawyers never penetrated. Yet it had its drawbacks. Fay had been hired to work for an octogenarian Republican, Associate Justice John Wesley Shenk.

Shenk was totally unlike Fay’s elderly friend Hammy, with whom she had gotten along so famously in her law school summer job. The mild-mannered, church-going Mason first made his mark as City Attorney of Los Angeles, where he had overseen the controversial acquisition of water in San Fernando and Owens Valley later made infamous in the movie Chinatown. Shenk soon became known statewide for his expertise in municipal water law. Though Fay found Justice Shenk affable and grandfatherly, his prejudices appalled her. Back in the 1920s, he had supported “Oriental exclusion.” Fay was amazed to learn he still used the term “the yellow hordes” to describe Asian-Americans.

Meanwhile Fay, in her spare time, found an outlet for her activist energies. She volunteered to do research for a ground-breaking ACLU case challenging hiring discrimination. A white woman employed in the Alameda County Probation office was forced by an anti-nepotism policy to leave her job because she had recently married a black colleague in the same office. Mrs. Gaines then applied for a job as a probation officer in a neighboring county but was turned down.

Fay looked up legal precedents for the complaint the ACLU filed in June of 1957 on Mrs. Gaines’ behalf. Marvin acted as her consultant. He considered the joint political enterprise far more interesting than his day job. The principal case the ACLU relied on was a landmark 1948 decision of the California Supreme Court that involved the refusal of the Los Angeles County clerk to grant an inter-racial couple a marriage license. State law at the time — like that in 29 other states — flatly prohibited such unions:² California’s ban dated back to the state’s admission to the Union in 1850.

California’s attorney general argued that the marriage prohibition remained justified on the basis that Negroes were socially inferior and the children of mixed marriages would likely suffer rejection by both races. While this case was pending, President Truman issued his historic order banning racial discrimination in the nation’s armed forces. California’s Chief Justice Roger Traynor led a bare majority of his court to make California the first state to hold an anti-miscegenation law unconstitutional.

When Fay read the vigorous dissent in Perez v. Sharp, she discovered to her dismay that it was written by her own boss, Justice Shenk. He argued with spirited stubbornness: “The Legislature certainly had as much right to … prohibit [marriage] between persons of different races as they had to prohibit it between … idiots.”³ Justice Shenk relied on a nineteenth century federal decision enforcing Georgia law. Fay boiled down her boss’s perspective to its essence: “If it is good enough for Georgia, it is good enough for me.”⁴ At about the same time, Fay learned that a male law clerk, hired when she came aboard, received $110 per month more than she did for doing the same work. After six months, Fay could no longer stomach Justice Shenk’s racism and sexism. Fay assumed correctly that Marvin would support her decision to quit. Over and over, Fay’s uncompromising nature would find a safety net in Marvin’s generous support.

Armed once again with Guild President Sharp’s recommendation, Fay asked Charles Garry for a job. Garry had just formed a new law partnership with his long-time fellow Guild member Barney Dreyfus. Both were becoming legendary for their vigorous defense of unpopular causes. Her quest for work at the new firm was ill-timed. The week after the partnership opened its doors on Market Street in San Francisco, three of its four principals were subpoenaed to appear before HUAC in San Francisco. The Committee was particularly bent on exposing Barney Dreyfus as a Communist: Dreyfus had played a leadership role in opposing Smith Act loyalty oaths and convincing the State Bar’s most prominent attorneys to champion the rights of HUAC targets.

Both Garry and Dreyfus were identified by a witness who had attended clandestine Communist educational programs in San Francisco with them back in the ’40s. Yet, much to the HUAC panel’s chagrin, the Bay Area hearings attracted large crowds who sympathized with the lawyers and applauded their refusal to cooperate. Still, when Fay came calling, Garry and Dreyfus did not know if their new firm would have any future. Garry suggested that Fay instead seek a job with Claude Allen, a black solo practitioner in the East Bay.

Allen was sixteen years Fay’s senior, but had just become a lawyer in 1954, two years before Fay. Born and raised in Mississippi, the World War II army lieutenant had supported his wife and four children as a bar owner while attending night law school for five years. Allen did not provide Fay with much guidance as he set her to work handling minor charges against black prostitutes. Fay convinced judges to order the same lenient sentences as white prostitutes routinely received.

While working for Allen, Fay became attracted to a young black lawyer. She confided to her friend Pip that she was tempted to cheat on Marvin with this handsome colleague. Despite this distraction, Fay soon became disillusioned with her new job. Allen had little idea how to run a practice. Shortly after Fay joined his office, he became desperate for witnesses to corroborate his client’s version of a two-year-old car accident. Allen paid an agent to hire a pair of “witnesses” who turned out to be staff members of the district attorney’s office. Allen pleaded guilty to perjury and was disbarred.⁵ This again left Fay without a paying job. Relying on Marvin’s support, Fay decided to join her good friends Pip and Stan, who were still in graduate school. She re-enrolled at Cal in political science.

Meanwhile, Fay and Marvin still worked on the ACLU’s job discrimination lawsuit for Mrs. Gaines. Their aim was to destroy the credibility of the Chief Probation Officer, who had been well-coached to cite legitimate reasons for not hiring Mrs. Gaines. The conservative judge was expected to accept any potentially plausible explanation given by this trusted long-time county employee. Yet the ACLU’s legal challenge coincided with an escalating national racial crisis.

At the beginning of September 1957 — two weeks before the hearing — an ugly confrontation in Little Rock, Arkansas, began to draw international attention to lack of progress in integration in the United States since the landmark decision in Brown v. Board of Education three years earlier. Governor Orval Faubus decided to take a stand for segregation by ordering the National Guard to block access of nine black teens trying to enroll in an all-white high school. As the situation intensified, President Eisenhower felt compelled to call in federal troops to ensure the black students were admitted. Ike then gave a televised speech explaining the necessity of that drastic action to redeem America’s tarnished image in the world.

Judge Donovan took the President’s speech to heart and gave the Gaines matter careful consideration before issuing his ruling on February 10, 1958. Relying on Perez v. Sharp, he found in Mrs. Gaines’ favor. The judge wrote: “Can it be validly contended that an inter-racial marriage does not come within the constitutional prohibition against discrimination because of race, creed or color? … To permit such action to go uncorrected should be of grave consequence to believers in the democratic system.”⁶

Fay and Marvin were elated. Spurred by the international spotlight on American racism, a conservative judge had unexpectedly rejected the testimony of his own chief probation officer. The two of them had helped the judge look with fresh eyes on the weight of the evidence and case law. Marvin remembered with fondness that they turned to each other and said: “This is so easy. Look what you can do!”