‘Separate But Equal?’ Same-Gender Marriage Parallels Racist Jim Crow Laws

SCOTUS is weighing overturning the Defense of Marriage Act. Are comparisons to racism and civil-rights laws helping?

Will DOMA be ruled Unconstitutional?The Supreme Court appears much closer to ending the federal Defense of Marriage Act than overturning California’s Proposition 8 and interfering with state’s rights. What’s the difference and how are parallels to racism and Jim Crow influencing the case?

Separate But Equal? ‘Full & Skim-Milk Marriages’

The Supreme Court’s stance on DOMA leaned favorably toward marriage equality after almost two hours of oral arguments on March 27. A majority of the justices voiced concerns for the constitutionality of a federally mandated definition of marriage, which currently is defined and recognized as being between a man and a woman only. As such, only heterosexual married couples are eligible to receive benefits like Social Security and tax breaks, while married same-gender couples, in states that have approved such unions, still are not recognized by the federal government.

Having two kinds of marriages, according to Associate Justice Ruth Bader Ginsberg, is likened to having “separate but equal” tiers, inferring a direct parallel to the faulted rationality the government once upheld in Jim-Crow-era laws. Ginsberg said:

They’re not–they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Additionally, questions surrounding the original motives behind DOMA arose: “Well, is what happened in 1996–and I’m going to quote from the House Report here–is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?” asked Justice Elena Kagan.

Comparisons between same-gender-marriage bans and racism have become an increasing argument for the supporters of LGBT-rights. For example, pro-LGBT group Every1Against1 previously used Jim-Crow imagery in its campaign in support of marriage equality, and Howard University School of Law’s Civil Rights Clinic recently filed an amicus brief that compared both Prop 8 and DOMA, and similar same-gender-marriage bans with Jim-Crow era laws that prohibited interracial marriage and reinforced continuing discrimination against Blacks.

“Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children,” read the brief.

The Supreme Court is expected to make a decision on DOMA and Prop 8 sometime this summer.

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  • DOMA has nothing to do with Jim Crow laws. You’re mixing apples and oranges. Marriage is Biblical concept and the relationship is defined by God in the first book of the Holy Bible, Genesis. The Holy Bible also provides Biblical principles on race. The bottom line is “what you do” does not equate to “who you are” and the problem with homosexuality is that they are trying to blur the lines between the two. Sober minded people know that there is a difference between “what you do” and “who you are” and the Civil Rights laws were meant to protect who people are and not what they do. You can do sexual acts but you can’t do the color of your skin. Well you probably could bleach your skin but there’s something wrong with doing that too!

    • Luke Visconti

      Ah yes, the Bible argument. Used in the attempt to preserve slavery, to keep women from the vote, maintain the Asian Exclusion Act, delay the Civil-Rights Movement and, in today’s incarnation, deny the humanity of gay people. Your argument is anti-American. This country was founded by people fleeing religious prosecution from a state religion in England. Our Constitution protects us from a state-run religion and protects religion from the state. Whatever your interpretation of the Bible is, you are secure in your house of worship to pursue it. For the state contract of marriage, it’s immaterial. That, in essence, is what it means to be an American. I’ll add that my LGBT brothers and sisters are “who they are” and I respect them for “who they are.” Take your “sober minded” hatred and go; it’s not welcome here. As far as bleach, I think you should soak your head in some. Luke Visconti, CEO, DiversityInc

    • Most people with a sexual preference for their own gender claim they were “born that way,” that it is — in fact — who they are, just as one’s color is. And, I keep hearing people allege that God established marriage. That’s a claim totally without foundation. Marriage is an institution established by human beings, likely in furtherance of property interests. Nowhere in the Bible is marriage prescribed as only permissible between opposing genders.

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