Separate Still Not Equal


Same-sex couples notched a tremendous victory last week when the Massachusetts Supreme Judicial Court ruled that nothing short of full marriage rights would satisfy the state’s constitution. The legislature had asked whether substituting Vermont-style civil unions would pass muster. “The answer to the question,” wrote the majority, “is ‘No.’ ”

Yet celebration remains premature. Massachusetts lawmakers may vote as early as this week on a constitutional amendment to overturn the court’s edict. On the national level, conservatives are also pushing for a federal constitutional amendment banning same-sex marriage, and many states have passed “Defense of Marriage” statutes allowing them to ignore a marriage license a gay couple receives from another state.

Still, progress is undeniable. Increasingly, the issue is not whether to provide legal recognition of same-sex relationships, but how. Just last month New Jersey’s governor signed into law a statute giving same-sex couples domestic partnership status—with some of the rights and benefits of marriage but not marriage itself—and other states are considering similar action.

But there’s a sobering side to the debate. On the crucial question of actual marriage versus civil unions, the Massachusetts court seems to be swimming against the tide: Some version of civil union or domestic partnership status is widely seen as an adequate compromise. All the serious Democratic presidential candidates, ever sensitive to public opinion, endorse civil union status as opposed to same-sex marriage.

As gay rights advocates must emphasize in the months ahead, the civil union/domestic partnership approach is fatally flawed. For one thing, civil union status would leave same-sex couples without the federal benefits that accompany marriage and would likely be of no value if the couples move to another state.

There’s a larger problem: the civil union response compromises the United States constitution, even if gay couples are afforded all the tangible rights and benefits of marriage in all 50 states. The obvious analogy is the “separate but equal” doctrine that once governed civil rights in the racial context. In Plessy v. Ferguson, in 1896, the United States Supreme Court upheld a statute that segregated train passengers by race, claiming that the Fourteenth Amendment was designed to enforce “political equality” but not “social equality.” Plessy‘s doctrine of separate but equal has long since been abandoned, and is considered a stain on America’s past. The two-tiered approach to marriage revives this discredited idea.

The Massachusetts opinion touches on this theme, noting that “the history of our nation has demonstrated that separate is seldom, if ever, equal.” This sentiment is welcome, but the court missed an opportunity that gay rights advocates must seize in the days ahead. We must address the lessons of Plessy and the indispensable analogy between the struggles for gay rights and racial justice.

Justice Harlan’s lonely dissent in Plessy remains the enduring response to the idea of separate but equal—whether for blacks or gays. Harlan rejected distinctions “implying inferiority in civil society” because “there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Critically, the commitment to a caste-free society requires more than equal benefits. As Harlan explained, “The thin disguise of ‘equal’ accommodations . . . will not mislead any one.”

In Brown v. Board of Education, the Supreme Court agreed, rejecting the notion that “substantially equal facilities” were all the law owed to African Americans. The unanimous court noted that segregation “generates a feeling of inferiority as to [blacks’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The words of Justice Harlan in Plessy, and the court in Brown, speak to us across the ages, and beyond their immediate contexts. A two-tiered marriage/civil union scheme creates a caste system based on and reinforcing the notion that some people are second-class citizens.

The traditional non-recognition of same-sex couples has denied gay men and lesbians countless practical advantages—tax benefits, health care, hospital visitation, probate, and much more. However, the injustice transcends these tangible deprivations. As the Massachusetts court recognized in its previous decision for marriage rights, the badge of inferiority that accompanies a caste system produces a “deep and scarring” effect.

The scars are invisible to many straights who are content with the civil union compromise. Howard Dean touts his accomplishment in signing civil union status into law in Vermont, and Wesley Clark self-satisfyingly declares his full support for “equal rights” while adding that whether or not same-sex unions are called marriage is a purely technical matter best left to states and religious institutions. Even John Kerry, one of only 14 senators to vote against the Defense of Marriage Act, opposes same-sex marriage—while touting civil unions.

Dean and Clark and Kerry don’t see the scars. They (like the dissenting justices in Massachusetts) believe that allowing gay couples the tangible benefits of marriage is equality enough, because they don’t confront the deep human dimensions of the issue. They’d never take the same position on a matter of race. We cringe at the thought of a black person forced to the back of the bus, and the recollection of children needing federal marshals to escort them to school. There’s nothing precious about the front of a bus or a particular schoolhouse. We find these images searing because the message that certain groups are inferior is beyond the pale. We instinctively understand the humiliation and trauma such a message can cause.

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.