Friday, August 11, 2006

Same-Sex Marriage Backlash: 2

Amid the garment-rending and despair, marriage-equality advocates have known some victories and felt hope. Yet in sheer numbers, the defeats build a much higher stack.

The vast majority of states wall off same-sex unions with various combinations of DOMA, one-man/one-woman marriage laws and/or amendments. Pro-SSM forces have increasingly wondered how they might establish homosexual unions as civil rights.

The lessons learned and roadmap could lie in comparisons and contrasts with earlier Black civil-rights struggles, court decisions, and advocacy demands. Many anti-SSM folk strongly deny that there can be any comparison. Not so, argues a paper, The Backlash Thesis and Same-Sex Marriage: learning from Brown v. Board of Education and Its Aftermath, by Penn State Law Professor and author Carlos A. Ball.

The paper is scheduled for the pending issue of the William & Mary Bill of Rights Journal, Vol. 14, 2006. You can download a copy at the bottom of this page. You can see an overview post on his paper here.

Note: Professor Ball is no relation to anyone at this blog. Pity. He'd be good to claim.

Denying the Big Wrong

We note that the anti-gay, anti-SSM forces often like to deny the immutable nature of homosexuality, characterizing it as a lifestyle. That then lets them differentiate between discrimination based on immutable characteristics, such as gender or skin color, and that based on sexual orientation. Thus, if something is not a civil-rights issue, they claim there is no need or basis to protect the class.

Oddly in this century, many of us are too young to have known or have conveniently forgotten the harshest Black struggles for equal rights, particularly starting with desegregating public schools. Here, Ball beards the lion. He contends that the 1954 U.S. Supreme Court decision Brown v. Board of Education is singularly apt in framing the current SSM/civil-union struggle.

There are some key differences. Yet, he makes a convincing argument that seeing what happened and did not happen among the public, in legislatures, and in the Supreme Court show what to expect in the mid-term in expanding rights beyond a few New England States.

He frames the current status in terms that the victories for equal marriage have been followed and in some cases preceded, by defeats. Yet, he states that "despite the harmful backlash experienced by the gay rights movement following marriage cases such as Goodridge, lesbians and gay men are nonetheless better off as a result of those cases. The gains from the litigation, in other words, have so far outweighed the losses."

Historically, this has been predictable for civil rights struggles and has always been overcome eventually. In addition, he writes "political and legal backlashes are a foreseeable consequence of controversial judicial victories that require majority groups to reassess in fundamental ways the manner in which they have in the past treated and understood certain minority groups."

The Long Wait

We who are impatient want the world to get on with resolving these issues and righting the wrongs. We even hear conservatives such as Bill Bennett say that the SSM battle has been lost. While many recognize this is a matter of time, that time is years and decades, as interracial marriage and school desegregation was.

So in 1954, the Supreme Court ruled that race-based school segregation was unconstitutional. In 2003, the Massachusetts Supreme Judicial court ruled in Goodridge that marriage here was a civil contract, that our state constitution forbad gender discrimination, and therefore, that we had to offer marriage or the equivalent to same-sex couples.

Ball points out a key parallel in the decisions. In Brown, the Court "left remedial questions for another day." In Goodridge, the SJC "was somewhat ambiguous as to the issue of remedies. Goodridge did not make explicit, for example, whether providing samesex couples with an alternative legal structure to marriage, such as that offered by civil unions, was sufficient to correct the marriage ban's constitutional defects..." In fact, the timid General Court here came back to ask that question and got a "No."

The Supreme Court did more damage through its passivity (my words). The NAACP had to decide whether to press for immediate remediation or to accept gradual improvements. It did the former. However, the Court returned an order to the non-compliant states that they desegregate "with all deliberate speed."

That toothless term was taken by Southern states to mean do nothing, which they gleefully did. Ball notes that "...ten years after Brown I, only 1.2 percent of black children in the eleven states that made up the old Confederacy attended schools with whites."

Ball sums up the effects of the initial rulings in both cases with:
As a result, in both instances, crucial remedial issues remained unresolved until after the respective courts issued subsequent opinions. The periods between the first and second opinions in Brown and in Goodridge raise similar questions about what kind of legal strategy should be pursued by civil rights advocates given growing public disenchantment with previous judicial victories. On both occasions, the plaintiffs’ lawyers chose to continue demanding full and immediate equality, even in the face of growing public opposition.
It would seem that plaintiffs, their attorneys and supporters accepted at some level that backlash was inevitable and they were willing to ride out the storm to achieve their goals.

The NAACP had already won victories before Brown. These included loosening racial restrictions in housing, transportation and at the college level. Even before the Brown ruling, some Southern states changed their laws to prevent being forced to integrate. South Carolina, for example, overturned its law requiring public education for children from six through twenty-one. Of course, this is similar to the SSM backlash, which has seen anti-SSM legislation and amendment drives even before Goodridge.

Rejecting Gradualism

The Brown follow-up case before the Court demanded an immediate end to desegregation in light of the flood of new Southern states laws. The NAACP considered and rejected a gradualist approach.

Ball cites the brief in Brown II as:
...pointing to a “considerable body of evidence,” which showed that when an individual is required to "act as if he were not prejudiced, he will so act, despite the continuance, at least temporarily, of the prejudice." The brief ended by urging the Court to require desegregation by the beginning of the 1955–1956 school year.
He finds a parallel in GLAD's post-Goodridge strategy. GLAD's lawyers argued that civil unions would in fact institutionalize separate classes for homosexual couples for this basic right. In this case, Ball notes, GLAD's brief:
  1. (N)oted that Goodridge held that the ban against same-sex marriage violated not only principles of equality under the state constitution, but also those of due process and liberty, and
  2. (C)ontended that, from an equality perspective, civil unions fell far short of what the state constitution required.
He concludes that, "The GLAD lawyers in effect asked the Massachusetts court to provide the moral backbone necessary to show citizens in the state and across the country that constitutional principles 'brook no compromise.'"

In another parallel with racial equality and desegregation, this successful effort by GLAD saw an even stronger backlash than the anticipatory actions. Even some states that already had a DOMA law, acted to pass constitutional amendments writing discrimination against same-sex couples into their fundamental document that othewise protects citizens' rights.

In the case of SSM, the backlash started six months before the Goodridge decision, with Lawrence v. Texas, overturning the anti-gay sodomy laws. Ball notes that many conservative viewed this as the clear warning that SSM was similarly in the judicial works.

The backlash started with the most reactionary states banning SSM, banning anything that looked legally like marriage for homosexuals, and even banning existing partnerships that heterosexuals and relatives used. That set the tone that continued for nearly three years. In addition, some states defined marriage as one-man/one-woman and passed constitutional amendments with those scattershot partnership limits.

While that seems both a far overreaction and very odd, Ball sees motivations both in the Brown and Goodridge backlashes. For Brown, for example, the resentment had two aspects. Most obviously, the federal government was ordering state and local governments to obey them -- that's a states' rights issue. More important in terms of time to remedy, "The apartheid society that still existed in the South in the 1950s was built on the idea that blacks were inherently inferior to whites. The system of segregated public education was a cornerstone of white supremacist ideology in the South."

In other words, everyone wanted, needed to feel superior to somebody else. Public schools were a key differentiator. Inferior Blacks went to inferior schools, somehow proving the superiority of Whites to their satisfaction. The Court's decision ordered them to drop this deeply held practice and belief.

Up next, how Brown and Goodridge differ and what's to expect.

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