Washington state, where I live and work, is about to remove the discriminatory provisions from its marriage law and allow same gender couples to marry. Really to marry. Not have a “domestic partnership,” which they have been able to do in our state for a while now. Wed. Get married. Have the same legally recognized relationship as my wife and I and so many other mixed-gender couples have. There’s still a bitter fight ahead. Once Governor Gregoire signs marriage equality into law the forces of discrimination will mount a referendum campaign to repeal the new law, making the same old tired, baseless claims about the sanctity of mixed-gender marriage and how allowing gay and lesbian couples to marry will not only undermine the institution of marriage, it will undermine the very underpinnings of society itself. Those claims have been repeatedly and thoroughly debunked elsewhere, and I won’t do it again here. There is, however, one issue that needs to be addressed. It is the issue of what the United States Supreme Court said in 1954 about the claim that separate can be equal.
The landmark case of Brown v. Board of Education, wasn’t about same gender marriage. It was about racial segregation in public schools. American apartheid in the South had created two separate systems of public schools, one for white students and one for Black students. Children of school age from kindergarten to high school graduation (and beyond in the segregated universities) were prohibited from going to school together. American racism, perhaps the most basic of the skeletons in America’s closet, insisted that the races be kept separate. Frankly, I can’t tell you why. I think American racists just hated Black people because of their identifiable racial characteristics. As this segregation came under attack from those Americans who saw the evil in racial segregation, the racists who had established and maintained the racially segregated schools in the South tried to defend the segregation by saying that although the schools for white children and for Black children were separate, they were equal. Therefore there was no meaningful discrimination in the segregation. “Separate but equal” became the rallying cry of a dying racism, of the dying Jim Crow South.
In 1954, in Brown v. Board of Education, the United States Supreme Court took a very careful look at the claim of the racists that these separate schools did not constitute discrimination because the schools were equal. Of course, the schools weren’t equal. The schools for Black children were underfunded, housed in run down facilities, used out of date textbooks that were handed down from the white schools, and were substandard in myriad other ways as well. Yet Chief Justice Earl Warren, writing for the court, did not decide the case primarily on the basis of the factual inequality of the two school systems. He decided it because he saw that, as the court put it, separate is inherently unequal. The point of the Brown decision was that the very separation of the races itself constitutes discrimination. Separate cannot be equal precisely because it is separate. The separation says to the minority group you are not equal. You have to be treated differently. You have to be kept apart. Separate is inherently, unavoidably unequal.
Today many people say that they support equal rights for gay and lesbian couples, but. Whenever you hear a “but” in a sentence like that, be suspicious. Here the “but” goes “but I don’t want it to be called marriage. Marriage is for a man and a woman. Call it something else.” Some people argue for what they say are equal rights for gay and lesbian people but insist on separating same-gender marriages from mixed-gender marriages by calling same-gender marriages something different than we call mixed-gender marriages. We’re all for equality, they say, but. But just don’t call it marriage. Call it something else.
Well, that position brings us right back to the Jim Crow South and separate but “equal” schools. Racially segregated school systems were ruled unconstitutional precisely because they were separate. No amount of equality in the quality of the schools (assuming that such ever existed, which it did not) could have saved segregated schools. They were unequal by the very fact of their separateness. The schools for Black children were unequal precisely because they were other, because they said to Black people you are other, you are different, you don’t deserve what we white people have. It is exactly the same thing when it comes to calling something that has all of the legal rights and obligations of marriage something other than marriage. Telling same-gender couples that you really do have equal rights, but you just can’t call your relationship what we mixed-gender couples can call ours creates inequality by the very difference it creates between the relationships of different classes of people.
Marriage has long been the social standard for loving, committed relationships to which the state gives legal recognition and which we have long said form the basis of a stable society. We don’t ask people “Do you have equal rights and obligations with people who are married?” We ask “are you married?” A couple may have all of the legal rights and obligations of marriage; but if they nonetheless have to answer that question no, in the eyes of society they are not equal to people who can answer that question yes. Giving same-gender couples all of the legal rights and obligations of marriage but not calling their relationship a marriage says to them you are almost on a par with us straight people, but not quite. It says we’re still going to keep you one notch below us in social standing. We’ll do better by you than we have in the past, but we can’t quite bring ourselves to grant you the full equality that you seek.
Brown v. Board of Education established fifty-five years ago that legal distinctions that separate classes of people on the basis of some inherent characteristic of their humanity create unequal classes of people. Separate is not equal. Separate cannot be equal. Gay and lesbian couples will never be the equal of heterosexual couples until they can marry. Marry, not create a domestic partnership, not create something called by any name other than marriage. I think most Americans now get it about schools segregated on the basis of race being inherently unequal. It’s about time we figured out the same thing about legal relationships segregated on the basis of sexual orientation.
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