Gay Marriage Opponents Mimic Objections to Interracial Marriage, Forde-Mazrui Says
Opponents of gay marriage use many of the same arguments as foes of interracial relationships did before Loving v. Virginia outlawed state bans on interracial marriage in 1967, said law professor Kim Forde-Mazrui at a talk sponsored by the Center for the Study of Race and Law and Lambda Law Alliance on Sept. 30.
"If religious, scientific, moral opposition to interracial relationships - sex, marriage and adoption - were wrong, notwithstanding the sincerity and good faith of those who believed in the opposition, then are the same arguments any more justified when they are used to oppose same-sex relationships?" Forde-Mazrui asked. "It seems that the similarities at least shift the burden. We've tried this before. We've learned in hindsight this is wrong."
Forde-Mazrui based his talk on a book review he wrote of Randall Kennedy's "Interracial Intimacies," about the historic opposition to interracial relationships in America and racial identity issues that resulted.
As he read the book, Forde-Mazrui said, he repeatedly saw that opponents' arguments against interracial relationships mirrored those of gay rights opponents. Like the arguments against gay marriage, "Much of the opposition to interracial relationships was grounded in religious beliefs."
In Loving, Virginia's Supreme Court justified a ban on interracial marriages by citing religious beliefs. Others argued against it on the grounds that it violated natural order and would lead to unhealthy children - perhaps mentally retarded or a mongrel breed.
Gay sex is also called unnatural, or regarded as bestial, by some today, he said, and the American Psychiatric Association considered homosexuality a psychological disorder until 1973. Forde-Mazrui acknowledged that the relation to procreation is different in gay relationships; now the concern is more the lack of procreation because many consider marriage a foundation for having children.
Even in states that had no segregation laws, interracial marriage was still prohibited, Forde-Mazrui said. The ban was among the earliest segregation laws and among the last to go.
"It was such a feared activity that it was often cited as a reason not to recognize other civil rights," he said.
From the 1880s to the 1960s, 4,000 to 5,000 blacks were lynched in the United States, many because of allegations of interracial sex. "The visceral hatred and opposition born of fear and anger was the most with respect to this type of interracial interaction," Forde-Mazrui said.
Racial discrimination in housing and employment has mostly dissipated, Forde-Mazrui said, and likewise people are starting to be more tolerant of gay rights in similar areas - but not in gay marriage.
Adding "sexual orientation" to the Employment Nondiscrimination Act came within one vote of passing the Senate in 1994, even with a Republican-controlled Congress, yet the same Congress overwhelmingly voted for the Defense of Marriage Act, which refuses to recognize gay marriage. It was signed by President Clinton despite his election platform for gay rights.
"When it comes to marriage, the majority of Americans are still against it from both sides of the political spectrum," Forde-Mazrui said.
The lynching of Matthew Shepard in 1998 revealed that homosexuality triggered the same kind of violence and fear that was generated in the past by black-white sexual relations. "There's something about sex inconsistent with conventional norms that triggers the most violent and visceral emotions." Reactions to interracial marriage still vary - 20 percent of Americans believe interracial marriage should be illegal. Alabama didn't remove the ban against interracial marriage from its constitution until 2000 (although it had not been enforced recently), but 40 percent of the state's residents voted to keep the ban.
Forde-Mazrui said a similar inversion of family values appears in opponents' arguments against gay marriage and in the historical argument against interracial sex.
Traditionally, the ideal family is viewed as a married couple who has children, with the worst manifestation of sex being rape. In contrast, Kennedy's account shows that even coerced sex between white men and black women was "shrugged off" in the past. What was more likely to offend people was if a white man paid money toward the children of the black woman.
Many states that prohibited interracial marriage allowed interracial sex. Even in Virginia, which prohibited both, the state did not enforce bans against interracial sex as much as the ban on interracial marriage.
"Casual sex is more tolerable than sex that involved meaning," Forde-Mazrui said, and the same holds true for gays today. The Supreme Court's recent decision striking down Texas' ban on same-sex sodomy "barely sent a ripple" because such laws are so rarely enforced.
With the military's "don't ask, don't tell" policy, a serviceman can rebut that he or she is gay if they show a one-night stand with someone of the same sex was "out of character," but attempting to marry someone of the same sex is irrefutable grounds for exclusion. "The hierarchy is inverted, with marriage being the worst, rather than the best."
One of the architects of "don't ask, don't tell" - Colin Powell - has said the analogy of gays to race is wrong, explaining that race is a status and sexual orientation is a behavior. Forde-Mazrui said that there was some sense in his explanation, but that it's highly questionable whether orientation is a matter of choice. "It certainly seems difficult to me to imagine that people would choose a lifestyle that results in them getting denied privileges and often subject to violence and discrimination if they could freely choose it," he said.
Forde-Mazrui noted that similar arguments against same-sex and interracial relationships appear in regards to children. There was once total opposition to couples adopting children of different races, and there is still weight placed against allowing a white couple to adopt a black child, he said, because of societal pressures. The National Association for Black Social Workers has said such cases may result in black children having "white minds."
Similarly, fears abound that adopted children whose parents are gay will be more subject to prejudice, or the child will "have confusion over their sexual orientation or worse, they'll end up being gay."
In the past, light-skinned blacks could sometimes engage in interracial relationships by passing for white, but they had to separate from their black families to do so, and if found out, it could be grounds for divorce or annulment. Many felt that "by passing, you're rejecting your blackness." A similar concealment of identity occurs with closeting in the gay community. Some see closeted gays as encouraging heterosexuality. The idea that members of marginalized groups could identify their own kind has been parlayed both in the African-American and gay communities. Both groups have undergone prejudice so intense "they've not only tried to hide their identity, they've tried to change it." Korematsu, the plaintiff in the infamous Supreme Court case challenging the U.S. detention program for Americans of Japanese descent during World War II, attempted to westernize his features through surgery.
Forde-Mazrui disputed the idea that race is purely about status. The law challenged by Loving"is a conduct-based law," he pointed out. "It prevents whites from marrying blacks. It's a combination of status and conduct."
Bob Jones University used to exclude students who engaged in interracial relationships, and the IRS tried to get the university's tax exemption removed as a result. The school pleaded religious freedom, but the Supreme Court said there was a national interest overriding that freedom. Now the university will not expel such students if their parents know and approve of their relationships. The policy focused on conduct, Forde-Mazrui pointed out, not race alone.
In response to a question about African-American clergy's opposition to equating civil rights with gay rights, Forde-Mazrui noted the Bible includes many stories that approve of certain things we don't approve of today, such as enslaving people from other nations. "Often religious beliefs support something that we emotionally already believe in, and when it doesn't we tend to not be so literalist."
Forde-Mazrui noted that believing homosexuality is wrong is increasingly being viewed as bigoted. The idea that marriage should be preserved for having children is incorrect since "we don't make having children a condition of marriage." Opponents have started to go to linguistic means to justify their beliefs, he said, saying that marriage "just means a man and a woman." Others want full rights for gays, but "just don't call it marriage." The move toward technicalities shows that a pro-gay rights view may seem more acceptable, or that the traditional reasons for opposition aren't persuasive.
In response to a question of whether moving too fast will create a backlash, Forde-Mazrui cautioned that waiting for resistance to go away may take a while. "It only backs away when it's pushed against," he said.
Forde-Mazrui said the proposed constitutional amendment to define marriage as between a man and woman seems to violate two conservative tenets-preferring political solutions over court decisions, and federalism. The amendment will not allow states to decide what their law toward gay marriage will be, whereas the Defense of Marriage Act now in place allows each state to deny or affirm gay marriages no matter what other states do. The Constitution is based on the premise that the majority decides, with the exception of protecting the individual against a potentially tyrannous majority. An amendment protects neither the majority nor the individual, he alleged. "That to me seems a pretty stark removal of the normal democratic process."
Responding to a question about how to fight homophobia among decision-makers, Forde-Mazrui said some academics have correlated homophobia with sexism; as women became more enfranchised, homophobia increased as well. Being lesbian is criticized as being male, and men who act feminine are regarded as violating their roles. Surveys show a connection among those who believe in traditional male/female roles and those who oppose homosexuality, he noted. Some academics argue that attacking sexism will also reduce homophobia. Coming out of the closet also can lead to more political debate, as opponents become aware that friends or family members may be gay. "People who support gay rights are also scared to say so," he said. "If you write about gay issues, a lot of people assume you're gay."
When it comes to full gay rights, he added "hopefully, if other people say never, and we say now, then the compromise is sooner than later."
For a fuller discussion of Forde-Mazrui's analysis of this issue, see Kim Forde-Mazrui, "Live and Let Love: Self-Determination in Matters of Intimacy and Identity," 101 Mich. L. Rev.2185 (2003) (Reviewing Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity and Adoption (2003)).