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.....