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.

Gay pride participants hold signs in support of Democratic presidential hopeful Barack Obama (D-IL)
Gay pride demonstrators support Barack Obama in California

Like Democrats running for Congress, same-sex marriage supporters hoped to ride the wave of Obama-mania all the way to victory in last week's election. Instead, of course, three states, including liberal and overwhelmingly pro-Obama California, voted to ban same-sex marriage. "People don't seem to realize it's all the same thing. An African-American being elected is all part of equal rights that also apply to the gay community," said a disappointed same-sex marriage proponent in Chicago a few days after the election.

Although some political analysts speculated that the Obama-driven high turnout among black voters would also bolster initiatives to ban same-sex marriage, many believed that Obama voters of all races would see same-sex marriage as a continuation of the civil rights struggle and reject the California ban. This view went along with the belief that opponents of same-sex marriage could only be motivated by anti-gay bias: For instance, one advocate insisted that any argument against same-sex marriage "is simply code for prejudice and bigotry."

The analogy between the racism that voters overcame to elect Obama and the anti-gay sentiment that undermined support for same-sex marriage is tempting. But it has led gay marriage proponents to neglect the obvious: Same-sex marriage directly involves sex, and so popular attitudes about sex and gender—not race—are the ones that are most relevant to whether same-sex marriage bans rise or fall. Perhaps the gay rights advocates who assumed that an Obama T-shirt reflected a vote for same-sex marriage should have worried that a wisecrack about Hillary Clinton's pantsuits signaled a vote against it.

After all, traditional marriage isn't just analogous to sex discrimination—it is sex discrimination: Only men may marry women, and only women may marry men. Same-sex marriage would transform an institution that currently defines two distinctive sex roles—husband and wife—by replacing those different halves with one sex-neutral role—spouse. Sure, we could call two married men "husbands" and two married women "wives," but the specific role for each sex that now defines marriage would be lost. Widespread opposition to same-sex marriage might reflect a desire to hang on to these distinctive sex roles rather than vicious anti-gay bigotry. By wistfully invoking the analogy to racism, same-sex marriage proponents risk misreading a large (and potentially movable) group of voters who care about sex difference more than about sexual orientation.

After all, many opponents of same-sex marriage don't oppose gay rights across the board. In California, same-sex couples enjoy significant civil rights protections and legal status as domestic partners, and voters have shown no interest in changing that. National polls show that overwhelming majorities support employment-based gay rights, including equal access to careers in the military, and same-sex civil unions. It's only when it comes to marriage—the word, with its religious as well as civic connotations—that pro-gay sentiment dwindles: Recent polls show that only 30 percent to 36 percent of Americans support same-sex marriage. It's this finding, of course, that the results of last week's elections echo.

The sharp differences in the polling numbers, depending on whether the question is marriage as opposed to almost any other gay rights issue, suggest that opposition to same-sex marriage isn't simply the 21st century's form of racism. After all, whites who opposed racial miscegenation in the Jim Crow South didn't support other civil rights for blacks or civil unions for mixed-race couples. In fact anti-miscegenation laws worked hand-in-glove with laws prohibiting sex outside of marriage and intimate cohabitation of unmarried adults to effectively outlaw interracial intimacy altogether. When Mildred Loving, who was black, and Richard Loving, who was white, successfully challenged Virginia's law barring interracial marriage, they were not just fighting for social acceptance and hospital visitation rights. They were fighting a jail sentence, suspended on the condition that they leave the Virginia and never return together: effective banishment from the state. Anti-miscegenation laws were designed to prevent intimate racial mixing of any kind; by contrast, many of the people who voted to ban same-sex marriage are apparently supportive of same-sex intimacy—provided you don't call it marriage.

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.

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?

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