Racism is the wrong analogy for opposition to same-sex marriage.

The law, lawyers, and the court.
Nov. 14 2008 3:34 PM

Analogy Lesson

Racism is the wrong frame for understanding the passage of California's same-sex marriage ban.

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If we avoid the tempting but misleading analogy to race and look at what's directly at stake, the combination of widespread opposition to same-sex marriage and equally widespread support for other gay rights is easier to understand. Gay rights in employment and civil unions don't require the elimination of longstanding and culturally potent sex roles. Same-sex marriage does. And while a lot of people reject the narrow and repressive sex roles of the past, many others long for the kind of meaningful gender identities that traditional marriage seems to offer.

You might say that this shouldn't matter to anyone who's secure in his masculinity (or in her femininity). Fair enough, but what if you aren't secure? The sex roles of the moment are contested and in flux. And amid the uncertainty and anxiety, most people still think they matter. Even the feminist movement hasn't really tried to eliminate distinctive sex roles—instead, it has struggled with how to make them more egalitarian and less constricting.

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Civil rights law reflects this ambivalence about sex difference. While constitutional law applies "strict scrutiny" to racial distinctions and federal employment law condemns race discrimination in almost all its forms, there's no such comprehensiveness with respect to sex. Sex discrimination is not subject to the same exacting scrutiny as race discrimination under constitutional law, and federal employment law allows many types of it. For instance, courts have routinely upheld workplace rules that enforce sex-specific dress and grooming norms against legal challenge. Employers lawfully can require women to wear makeup and feminine attire and prohibit men from wearing jewelry and long hair. By contrast, they can't have one set of grooming rules for white employees and another one for black employees. Civil rights laws explicitly allow employers to defend a claim of sex discrimination by arguing that male or female sex is itself a job requirement—say, for prison guards who do strip searches or for restroom attendants. By contrast, as a matter of federal law, no job can be the exclusive province of white people, or black people, or Asians or Latinos.

None of this justifies the opposition to same-sex marriage. But it does help to explain it. I wish voters had overcome their identity crises and supported gay marriage. But many same-sex marriage advocates have been talking past the people they need to convince: the large, moderate opposition that voted for sex difference, not homophobia. Dropping the oversimplified analogy between racism and homophobia would help same-sex marriage supporters make their case more effectively.

And it would help us to see that despite last week's set backs, there's reason for optimism: Anti-gay bias is probably less severe and widespread than the results of last week's elections seem to suggest. But the complexities of modern sexual politics may make the struggle for same-sex marriage harder than Barack Obama's struggle against racial prejudice. Maybe the nation will be ready for same-sex marriage when it's comfortable enough with evolving sex roles to elect its first female president. Michelle Obama in 2016?

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.