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COMMENTARY
Different
Battle, Same Struggle
But
equating gay plight and black history goes too far.
By
Tobias Barrington Wolff — Tobias
Barrington Wolff, a professor at UC Davis Law School, is on the
executive board of the Equal Justice Society, a civil rights advocacy
group.
March
16, 2005
Los Angeles Times
San
Francisco Superior Court Judge Richard Kramer made a bold choice
in Monday's opinion recognizing the equal right of gay couples
to marry: He invoked Brown vs. Board of Education and the
American legacy of segregation to explain a part of his ruling.
Isn't
it sufficient, the state had asked in its briefs, to allow gay
couples to enter into "domestic partnerships" with all
the basic rights of marriage under a different name? Absolutely
not, responded Kramer in his decision, because such a "separate
but equal" institution would give gay people a "feeling
of inferiority as to their status in the community" —
the same type of harm that segregated students experienced under
Jim Crow and that led the U.S. Supreme Court in 1954 to outlaw
school segregation.
It
was bold to wrap the marriage ruling in the mantle of Brown
because, frankly, many blacks take offense when people draw parallels
between gay rights and the issue of race in the United States.
The comparison, many say, feels like a misappropriation of their
history. The problem is made worse by the fact that the public
face of the gay community is too often exclusively white.
I come
to the issue as both a gay man and a constitutional scholar who
has tried hard to understand the history of slavery and Jim Crow
in our nation. From that vantage, I see the need for more care
on all sides in making these arguments.
First,
there is a historical reality that we must acknowledge. The oppression
of gay people in the United States is not morally equivalent to
the oppression that black Americans have endured. It just isn't.
I cringe when gay people, rightly outraged at the discrimination
that they face, take that extra step and say, "Excluding
us from the right to marry is like telling us that we're three-fifths
of a person."
This
nation's treatment of black Americans is its defining, original
sin. Black people survived 250 years of chattel slavery and a
century more of segregation, disenfranchisement and lynchings.
The
effect of that history continues to define their struggle for
equal opportunity and advancement. Only the genocide of Native
Americans occupies a similar place in the nation's moral ledger.
When
the Supreme Court declared in Brown that the tradition
of "separate but equal" has no place in our public institutions
and recognized individual dignity as a constitutional value that
must be respected, that statement was uniquely the result of the
black experience in the United States.
But
the enduring power of Brown derives from the fact that
its principles are not limited to black Americans. In the same
year that the court decided Brown, it also recognized the right
of Mexican Americans to equal citizenship through jury service.
Within 20 years, the court had applied those same principles to
women and religious minorities. And just two years ago, in Lawrence
vs. Texas, the court finally began to recognize the equal
dignity of gay Americans when it struck down the sodomy laws that
had sought to criminalize their relationships.
Gay
people do have a right to claim a place in that constitutional
tradition. The second-class citizenship that gay people continue
to endure may not be as bad as Jim Crow and slavery, but it is
bad enough.
Excluded
from open military service, unable to claim federal workplace
protection and denied equal support for their families in most
parts of the country, gay people can have little doubt what it
means for their place within the community when the state refuses
to allow them to marry.
Gay
people enter a house built by the labor of others when they invoke
the tradition of Brown, and they should claim that place
with a degree of humility. Nonetheless, they have earned that
place through blood and tears. It is no threat to the legacy of
the civil rights movement to recognize their claim. It is a vindication.
Thus,
the San Francisco court was correct to rely upon Brown in
analyzing California's exclusion of gay couples from civil marriage.
Brown does not require us to ask who among us is the most
oppressed. It requires us to ask how discrimination against any
group of people affects their status as equal citizens.
Link
to original article on latimes.com
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