The Washington PostDemocracy Dies in Darkness

Md. Attorney General Frosh overrules racist opinions of predecessors

Brian E. Frosh nullifies 22 old legal opinions that once helped state agencies uphold segregation and bans on interracial marriage

Maryland Attorney General Brian E. Frosh (Patrick Semansky/AP)

Outgoing Maryland Attorney General Brian E. Frosh announced Monday that he was overruling decades of antiquated, racist legal opinions his predecessors had issued, wiping away some of the many vestiges of systems that denied equality to Black people.

The 22 rulings, rendered unconstitutional by courts for decades, had helped state agencies uphold segregation, discriminate against people of color and deny marriage licenses based on race. While Frosh’s office noted the opinions now have no legal teeth, formally overruling them helps Maryland atone for generations of racist policies.

“The laws were abhorrent and ultimately held to be unconstitutional,” Frosh (D) said in a statement. “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.”

Frosh, who leaves office in January, launched the effort to review old legal opinions this year after Virginia’s outgoing attorney general, Democrat Mark Herring, overturned 58 legal opinions upholding racial discrimination that his predecessors had issued.

The attorney general’s action comes amid several other efforts that Maryland’s government has launched to address its racist past — and as the state is at the cusp of installing a concentration of Black state leaders unprecedented in American history.

This month, Maryland elected its first Black governor — the third to be elected in the nation’s history. Gov.-elect Wes Moore (D) campaigned on fixing systemic inequality.

In a statement praising Frosh’s action Monday, Moore said: “We have an opportunity and a responsibility to rethink the systems that have left too many Marylanders behind.”

Frosh’s successor, Rep. Anthony G. Brown (D-Md.), will be the state’s first Black attorney general.

A slaveholding border state that stayed in the Union during the Civil War, Maryland built its wealth on a slave economy that allowed for unemployed free Blacks to become re-enslaved and created a far-reaching network of Jim Crow laws after the war, according to the state archives.

The state legislature formally apologized for slavery in 2007 — 373 years after the institution began in the state’s first constitution and 143 years after a new constitution abolished it.

In 2019, state lawmakers created the Maryland Lynching Truth and Reconciliation Commission to research the known and unknown cases of extrajudicial racial terror that killed at least 41 Black people.

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In May 2021, Gov. Larry Hogan (R) granted posthumous pardons for 34 Black lynching victims, in what was believed to be the nation’s first systemic pardon for all of a state’s known lynching victims.

“We have no greater responsibility as leaders in a democracy than preserving for future generations the importance of clearly differentiating between right and wrong,” the governor said at the time.

In his 13-page opinion overturning prior legal opinions, Frosh says his office looked at opinions dating back to 1916 — the first year they were compiled in published volume.

“As much as we might prefer otherwise, our research showed that the Office of the Maryland Attorney General was sometimes complicit in the State’s history of racial discrimination,” Frosh wrote.

He pointed out that he is not rendering judgment on whether they should have questioned the constitutionality of those laws, saying that’s a function of the courts.

As examples, Frosh pointed to an opinion — issued after the U.S. Supreme Court ruled schools could not be segregated by race under the infamous “separate but equal” doctrine — that argued that Maryland could separate Black and White children who were in trouble with the law and assigned by courts to remedial boarding schools known as “training schools.”

In 1928, Maryland’s attorney general opined a clerk should deny a marriage license to a White man and a woman whose paternal grandparents were Black.

“Renouncing these unfortunate opinions cannot change the past,” Frosh wrote. “But we hope that it will serve to reinforce our Office’s current commitment to equality under the law.”

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