Gay marriage and the "separate can never be equal"

[Anthony]

Gay marriage and the "separate can never be equal" lie
December 21, 5:05 PMSF Civil Rights Examiner
Leland Traiman

Many same-sex marriage activists cannot distinguish between a goal and a strategy. Their goal is one, unified category of marital rights for both heterosexuals and same-sex couples. However, many falsely believe that the only strategy for attaining equality is for same-sex couples to immediately have access to marriage. Unfortunately, demanding immediate relief has failed, 33 election losses and no wins. The few states, along with the City of Washington, DC, which allow same-sex marriages only do so because in those jurisdictions it is extremely difficult to put an issue on the ballot to overturn a legislative or judicial decision. Same-sex marriage victories in those jurisdictions do not present a broader winning strategy.


Clearly, in states where same-sex marriage must face the voters a different strategy must be developed in order to succeed. Attaining comprehensive domestic partnerships first, which has rarely failed and just won state-wide in Washington state, is the logical strategy to adopt. Unfortunately, many activists refuse to even consider this option because they not understanding the difference between a goal and a strategy. These activists falsely believing that comprehensive domestic partnerships is the end game rather than just a step on the road to the end. These activist rail against this strategy with a very effective slogan, "Separate cannot be equal." There are two ways to try to stop this inappropriate rant. One is to try to make these activist understand the difference between a goal and a strategy. The second is to educate people as to why the reference to the 1896 US Supreme Court decision declaring that "separate but equal" services for African-Americans is an inappropriate reference. Here is an attempt at the latter.


Analogy to Brown v. Board of Education (1954, US Supreme Court) is a common error which ignores the historical facts. “Separate but equal” was invented by white supremacists in Plessy v. Ferguson (1896, US Supreme Court) to oppress African-Americans. The term, "separate but equal," was always a lie. The racist who promoted it never really wanted African Americans treated equally. Everyone, with a wink and nod, knew that. But its opposite, that "separate can never be equal," is also a lie. If that were true then men and women would share the same public toilets and affirmative action would not exist. Domestic partnerships were invented by Tom Brougham, a gay man, in 1981 and advanced by the lesbian/gay community to obtain the benefits of marriage when most lesbians and gay men viewed marriage as a discredited patriarchal institution. Comprehensive domestic partnerships and civil unions are now specifically designed to avoid any legal inequalities with marriage. This painstaking legislative word-smithing gives lie to the notion that separate cannot be equal.

All civil rights struggles have had a series of steps and compromises along the way. The LGBT struggle for equal marital rights is no different. But, what if same-sex marriage is another situation where, indeed, separate is not equal? What if comprehensive domestic partnerships are only "almost" equal? At this point in time, most LGBT folk, particularly in states with no protections what-so-ever, would love to be "almost" equal because, as of today, same-sex couples are nowhere near equal! The LGBT community must get to equality (or almost equality) first. Once the community has achieved that, the community can start to worry about possible inequalities. Indeed, there may not be any to be found. Until then, it is just academic ruminations. (Commissions in New Jersey and Vermont "proving" that civil unions were not equal to marriage were cleverly stacked with marriage-only advocates whose conclusions had been decided upon before each commission met.)


Anecdotal reports of inappropriate or anomalous implementation of New Jersey's civil unions or California’s domestic partnership laws would not be solved by changing the titles to marriage. Lesbians and gay men in Massachusetts have reported problems with their state’s implementation of same-sex marriage. Like California and New Jersey, Massachusetts's legislature has had to plug holes because these policies are new. Any new and comprehensive policy, no matter how well written, will have bumps along the road to implementation. This was documented by Dale Mitchell, Cofounder of the LGBT Aging Project in Boston, in his letter to the Gay & Lesbian Review in May of 2007. And, of course, there will always be inequalities, regardless of title, until the federal government grants federal marital rights to same-sex couples.


And, by the way, federal marital rights could be granted to any legally-recognized unions be they marriages, civil unions or domestic partnerships.


There is, of course, another reason why it is unwise for the LGBT community to brandish the term "separate can never be equal" in the fight for marriage equality. The African-American community rightly feels that they have a special connection to the phrase "separate can never be equal." Of course, Brown v Board of Education was a victory for all Americans. But it must be recognized that it was the African-American community which brought us this victory at one of highest prices a community can pay. Sadly, it is with the African-American community that the LGBT community, particularly on the issue of marriage, is having the most difficulty. The LGBT community needs to be particularly sensitive to other minority communities just as it would like others to be sensitive about their "sacred cows." Additionally, the political leadership of the African-American community has been extremely supportive of LGBT causes despite the lack of support from its rank and file. The African-American community is, of course, the primary base of support for those African-American elected officials. It is, therefore, unwise to antagonize the African-Americans community by using a phrase which they, rightly or wrongly, believe has been inappropriately expropriated. Doing so undermines the African-American leaders who have stepped forward to support LGBT rights in general and same-sex marriage in particular.