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Prof. Kermit Roosevelt on marriage equality in the Supreme Court

June 25, 2015

Few U.S. Supreme Court watchers think that marriage equality is still a live question. The proponents of traditional marriage as an exclusive form have lost. What remains to be determined is only what Ross Douthat called the terms of their surrender. How will society regard anti-gay marriage sentiments, or sexual orientation discrimination more generally?

The current trend seems to be towards assimilating sexual orientation discrimination to race discrimination and treating it as equally unacceptable. The CEO of Mozilla was forced to step down after it came out that he had donated money to support California’s same-sex marriage ban, Proposition 8. Florists and pizzeria owners who seek a right to refuse to serve gay weddings are shamed and threatened. These consequences are similar to the punishment of overt racism: compare the fates of Donald Sterling and the University of Oklahoma chapter of SAE.

Conservatives argue that sexual orientation discrimination should not be equated with racism. They do not tend to explain what it should be equated with, but there is an obvious possibility. Sexual orientation equality is the third great civil rights movement of our constitutional history. The other two are the movements for race and sex equality, and if we should not view anti-gay discrimination as race discrimination, sex discrimination is the obvious alternative.

Interestingly, support for traditional gender roles is not nearly as toxic as racism. One is not drummed out of society for applauding stay-at-home moms; one can even endorse the pay gap on the grounds that it helps to “promote and sustain marriage.” Understanding why sex discrimination is viewed so differently from race discrimination may help us decide which is the proper analog to sexual orientation discrimination.

One difference between race and sex discrimination that might help is the distinction between the attitudes behind them. Race discrimination was justified by hostile and derogatory attitudes: blacks were considered inferior and threatening. Sex discrimination, by contrast, was justified by romantic paternalism: women were placed on a pedestal in order to keep them in a cage.

This distinction suggests that sexual orientation discrimination is like race discrimination after all. The attitudes behind sexual orientation discrimination are as hostile and derogatory as those behind racism. Homosexuality was classed as a mental disease by the American Psychiatric Association until 1974. Homosexual conduct was a criminal offense in many states until the Supreme Court struck down those laws in 2003. Gays and lesbians were frequent targets of violence and murder based on their orientation.

Another potentially relevant difference is that the movement for sex equality has, all things considered, probably been more successful. There are currently twenty female senators, compared to two African-Americans; at the level of state governor the numbers are five and one. At institutions of higher education, female students regularly outnumber male students, and outperform them as well. It may be, then, that racism is more sharply condemned because lingering sexist attitudes are seen as less powerful—part of a worldview that has already been largely defeated.

From that perspective, sexual orientation discrimination should probably be analogized to sexism and viewed with similar tolerance. Sexual orientation equality has moved very fast and is likely to achieve a more complete victory than either race or sex equality. The movement for race equality faces the barriers of persistent de facto segregation and generations of inherited disadvantage. Sex equality must contend with the real biological differences between men and women and the deeply entrenched gender roles that have grown up around them, in keeping with which women still do vastly more childcare than men, even in two-income families. Gays and lesbians face none of these obstacles, and their equality movement is likely to succeed in full.

There is, however, a more troubling explanation for our stronger reaction to overt expressions of racism. It is that forceful condemnations of explicit racism allow us to define racism as just that—explicit statements. They allow us to see the problem of race in America as anecdotal rather than systemic; they allow us to suppose that as long as we do not think or talk the way racist people do, we are off the hook.

This is, unfortunately, not the case. Studies suggest that unconscious racism is pervasive. Resumes sent out with white-sounding names do better than those with black-sounding ones. Subjects acting as police officers in a computer simulation that requires them to distinguish between armed threats and unarmed civilians systematically shoot unarmed black men more frequently than unarmed white men. Decades of ostensibly race-neutral government policies at the Federal Housing Administration and other agencies worked to disadvantage and segregate African-American communities.

These are uncomfortable truths, and a focus on isolated individuals allows us to avoid confronting them. There is probably no similar psychological need to define sexism in individual rather than institutional terms. Nor is there with homophobia. If this distinction is the one that matters, we may well not end up condemning homophobia in the same way we condemn racism. But that may bespeak not a greater commitment to racial equality but a greater need to deny the persistence of inequality.

 

Kermit Roosevelt is a professor of Constitutional law at the University of Pennsylvania Law School and the author ofThe Myth of Judicial Activism and the forthcoming novel Allegiance.