Separate Still Not Equal

If Gay Marriage Is the Question, Civil Unions Aren't the Answer

The analogy between race and sexual orientation fails to sink in because many straights cannot imagine the agony of growing up gay in a homophobic society. Is it less harmful than growing up black in the South in the 1950s? No formula measures such things, but in critical respects the experience of gays is uniquely painful. Gays are often driven into the closet, compelled to hide their identity (even from themselves), and thus lack any support system. For these people, as well as many gays who do come out, one's own family may constitute the worst enemy rather than a source of solidarity. Anyone inclined to pooh-pooh all this should try to explain the staggering suicide rate for gay teenagers—triple that of straight teenagers.

States that enact civil union statutes deserve one cheer for trying to reduce the injustice faced by an oppressed group. But they have chosen an unacceptable means to that worthy end, ignoring the social and psychological costs of the law establishing a pecking order among its citizens.

But, some will ask, why the rush? Historically, same-sex couples received zero legal recognition. Isn't civil union status an invaluable first step?Shouldn't we show patience, and wait until the country at large is more ready to embrace full marriage rights?

The answer again lies in the racial analogy. Martin Luther King's famous "Letter From Birmingham Jail" addressed this very concern: that he wanted too much too soon, and that he should accept more gradual change so as to give whites time to reconcile themselves to the increasingly egalitarian social order.

Dr. King observed that he had never engaged in activism that was "well timed in the view of those who have not suffered." He continued, "For years now I have heard the word 'Wait!' It rings in the ear of every Negro with piercing familiarity. This 'Wait' has almost always meant 'Never.' We must come to see, with one of our distinguished jurists, that 'justice too long delayed is justice denied.' " Indeed, the wait for Plessy's doctrine of separate but equal to be overturned lasted six decades.

In his Plessy dissent, Justice Harlan prophesied that "the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case." To acquiesce in the caste system entailed by a marriage/civil union distinction is to fall on the Plessy and Dred Scott side of history. A single-tiered marriage regime is the only solution consistent with this nation's commitment to a caste-free society. The time for this solution is now.


Alan Hirsch is a senior consultant for the UCLA School of Law's Williams Project on Sexual Orientation Law and Public Policy.

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