Wednesday, November 12, 2008

Civil unions vs gay marriage: "separate is not equal" explained in depth

In advocating the inadequacy of civil unions as a substitute for gay marriage, a claim is often made that "separate but equal" is an impossibility: separate cannot be equal. I've never really seen an adequate explanation as to why this is. Sure, Brown vs Board of Education struck down the idea as unconstitutional when the US Supreme Court ruled against segregated schooling, but simply pointing to the fact of that court ruling, and saying that's the end of it, isn't good enough. You have to look at the reasoning of the decision and see if it can apply to civil unions. So I did.

An interesting fact that I see straight up is that the decision was only intended to apply to the question of segregated schooling. Plessy vs Ferguson, the 19th century court decision that created the "separate but equal" idea in the first place, was originally applied to segregated accomodation, and wasn't actually overturned by this ruling. In this ruling, the legitimacy of the "separate but equal" doctrine in any area besides education wasn't considered. It seems that it is therefore necessary to explicitly lay out a case why the "separate but equal" doctrine is just as pernicious in a different context.

There is guidance from the ruling on this. It was the "intangible" factors associated with education that tipped the court in favour of ruling "separate but equal" unconstitutional in the realm of public education. These "intangibles" were described in one case as "those qualities which are incapable of objective measurement but which make for greatness in a law school". Even with complete equality in legal statute, and in access to buildings and teachers, the mere fact of separation negatively impacted these intangible qualities because the act of separation was inferred to demonstrate the inherent inferiority of the minority group. This created in the segregated school-children "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

If it is possible to point out that there are "intangible" factors associated with marriage, then they need to be taken into account to determine if separation of same-sex couples into "civil unions" unjustly demonstrates the "inherent inferiority" of same-sex relationships.

Are there such "intangible" factors in marriage? Hell, yes. The intangible benefits of marriage are the whole point of legally recognising any marriage at all in the first place. All the legal framework about rights and responsibilities is there entirely because marriage is presumed to have some indefinable qualities, "incapable of objective measurement" to use the Supreme Court's language, that makes it worthwhile.

And yes, the separation of same-sex couples from opposite-sex couples does promote inequality in the way those "intangibles" would be provided. You can see this already in the way people talk about the issue. Talk to any person who supports "civil unions" for gay people but "marriage" for straight people. Their excuses make it clear pretty quickly that they want the separation specifically because they believe that the "intangible" benefits of marriage for opposite-sex couples either couldn't exist, or would exist only in an inferior form, in a gay "marriage". "Marriage is about raising children" implies that same-sex couples are inferior child-raisers. "Marriage is a sacred tradition" implies that same-sex couples are excluded from the sacred. "Marriage is about what's best for society" implies that same-sex couples are not good for society. Even "we shouldn't risk experimenting with the established definition of marriage" implies that there's something inherently risky about treating same-sex relationships as on par with opposite-sex ones.

So the reasoning of Brown vs Board of Education does apply to the question of civil unions and gay marriage. A separate institution for gay people, even one that functions like marriage in legal statute, will create an inherent inequality in the provision of the intangible benefits of marriage that is biased against gay people. This is wrong. Only gay marriage can provide complete equality.

Unfortunately, most people don't believe that same-sex couples are really equal to opposite-sex couples.....


Anonymous said...


Joshua said...

If civil unions were exactly the same as marriage, in every legal way, would that be acceptable to the Gay community?

If same sex marriges were inferior to traditional marrige , but they were still called marriage would that be acceptable?

What something is called shouldn't be important , it's about "equal rights", and not about acceptence or affirmation of your lifestyle. Fight the battle you can win.

Fight to get civil unions to be marriage by another name. Same sex unions ARE different than traditional unions because of their make up. So let it be called something different as long as the RIGHTS are the same.

Opposition would dry up , if you would just out flank them rather than trying a head on assualt, that you won't win.

Hope this Helps, and Good Luck

Z said...

Joshua: no, I do not believe that same-sex marriages are different just because of their gender make-up in any way that actually matters to marriage. I think they are exactly the same. Any talk suggesting otherwise, for example about the so-called "natural complementarity of the opposite sexes", I find highly dubious, as it seems to me to be nothing more than a way of unjustifiably saying that same-sex relationships are inferior.

Your language talking about gay people is interesting, too. Where straight people are naturally presumed to experience love, total commitment to one another and a complete union in marriage such that two become one, gay people's relationships are just a "lifestyle". Another subtle indicator of their perceived inferiority.

I agree with you that civil unions are a battle that is better off fighting, though. If the vast majority of people think that same-sex relationships are, at best, only almost as good as opposite-sex relationships, then something only almost as good will be all that they're willing to give us, civil rights argument or no civil rights argument.

I'd be happy to compromise on something almost as good in order to get anything at all. I'd just want to make it abundantly clear that it is a compromise on an alternative that is inferior.

Alyse said...

I appreciate your post greatly; i really enjoyed reading it and i'm glad to see someone address the true accuracy of the argument in comparing the Brown vs. Board of Education case to gay civil rights today. At the gay marriage (anti-prop 8) rally i attended the other day in Portland Oregon there were a lot of signs and people talking about that very case and how the fight for civil rights for colored minorities then is the same fight for gay minorities now. I wish the United States lived up to its expressed propagandic ideals about equal oppurtinity for all and all that patriotic bolagna. We're a country supposedly founded on freedom yet our minorities are some of the least free compared to other democratic, industrialized countries. It's time for people to see that all people are created equal; we're all human beings and deserve exactly the same rights across America.

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Anonymous said...

I respect the thought behind the "separate is not equal" article. But why is it you assume there is an intangible inferior aspect inherent to civil union? Sadly, it seems many marriages are inferior. I believe there is a very large statistic out there regarding how many marriages end in divorce! Marriages and Civil Unions are not about public education. I consider both a personal declaration of love and committment between two people. If the legalities and rights are equal then why not embrace the definition. The two words, civil and union are certainly lovely words. I totally support civil union between people of the same sex. To me, it is a matter of sematics which defines the situation......big deal. As long as the same rights are applied, gays and lesbians should be proud of the different name for their partnership. Get a civil union license. Be a wonderful gay or lesbian couple in a committed relationship, raising great kids and have a wonderful civil union together. Shouldn't the focus be more on a federal civil union law so that civil unions are legally acknowledged thoughout our country?