Why did court treat two minorities so differently?
Gays win, blacks lose. That’s the upshot of this week’s landmark Supreme Court decisions.
“It’s an exciting day for civil rights in America,” a young gay man standing outside the Supreme Court told the Washington Post. “I am a significant step closer to being an equal citizen under the law.” That sentiment was not shared by African-Americans. The day before, Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, called the court’s voting rights decision “an egregious betrayal of minority voters.”
Why did the Supreme Court treat the two minorities so differently? Because the two minorities face significantly different problems. Since the civil rights laws were passed in the 1960s, inequality has become a bigger problem for African-Americans than discrimination. For gays, the problem is discrimination. The U.S. legal system is far better equipped to deal with discrimination than inequality.
In the movie “Lincoln,” there was a dramatic moment when Thaddeus Stevens, a radical Republican congressman from Pennsylvania, is being goaded by his enemies to declare that African-Americans are equal to whites — a sentiment that, in 1865, would have exposed him as an “extremist.”
Representative George Pendleton of Ohio, the recently defeated Democratic candidate for vice president, confronts Stevens, saying, “You have long insisted, have you not, that the dusk-colored race is no different from the white one?”
After a dramatic pause, Stevens replies, “I don’t hold with equality in all things. Only with equality before the law — and nothing more!”
An uproar ensues, as Stevens is accused of deluding his colleagues. But Stevens persists, defiantly proclaiming, “I do not hold with equality in all things! Only with equality before the law!”
Then, as now, equality before the law is something the Constitution can deal with. “Equality in all things” is more difficult.
Both gays and African-Americans have had to face legal discrimination. The law makes a huge difference. It legitimizes prejudice by giving it legal sanction — as it did in the Jim Crow South. Gays were prohibited by law from marrying and raising families, thereby denying them personal happiness and fulfillment.
African-Americans could not avoid discrimination and prejudice. Gays, however, could stay in the closet. And many, perhaps most, did until recently. The federal government even tried to force gays into the closet when it passed “Don’t Ask, Don’t Tell” in 1993.
That was the most outrageous legal compromise since the framers of the Constitution defined slaves as three-fifths of a human being. “Don’t Ask, Don’t Tell” told gays serving in the military that they could avoid discrimination and punishment only by hiding their true identities.
One key reason that gay rights have become a major issue in recent years is that so many gays have come out of the closet. According to CBS News, 77 percent of Americans said they knew someone gay or lesbian in 2010, up from 42 percent in 1992.
The greater prominence of gays has had both a negative and a positive effect. On the one hand, we’re seeing more instances of anti-gay discrimination and violence. At the same time, we’re seeing greater familiarity and acceptance. Call it “the Dick Cheney effect.” Knowing gays personally helps explain the astonishing speed with which so many Americans have changed their minds about same-sex marriage.
Inequality remains a serious problem for African-Americans. Much of it is attributable to centuries of oppression. Speaking at Howard University in 1965, President Lyndon Johnson argued for affirmative action as the remedy, saying, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race, and then say, ‘You are completely free to compete with all the others’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”
Public support for affirmative action has been declining for the past two decades, according to the Wall Street Journal-NBC News poll. In 1991, 61 percent of Americans felt that affirmative action programs were still needed. Now, 45 percent feel that way.
The Supreme Court responded this week by ordering the University of Texas to justify its affirmative action program as a remedy for specific instances of past discrimination. The court also ruled that states that had a history of voter discrimination when the Voting Rights Act was passed in 1965 no longer have to bear a special burden of demonstrating fairness in their election laws.
No one talks about affirmative action for gays because inequality is not perceived to be the problem. The stereotype of gay men is affluent and fancy free because they often have fewer family responsibilities. But that’s only because financially secure gay men are the ones most likely to come out of the closet. Lesbians certainly don’t fit that stereotype. They have the disavantage of being underpaid women with no male income to depend on.
“We can deal with discrimination,” the court seemed to be saying. “We can deal with inequality only if it can be proved that it is a direct result of discrimination.” For African-Americans, proving that is becoming more difficult. For gays, however, the main issue is discrimination. With same-sex marriage still banned in 37 states, gays have not yet overcome.
PHOTO (Top): New York State Senator Brad Hoylman (C) speaks, as his husband David Sigal reaches out to touch their daughter Silvia’s hand, after the Supreme Court struck down the Defense of Marriage Act, in New York, June 26, 2013. REUTERS/Lucas Jackson
PHOTO (Insert A): Representative Thaddeous Stevens (Tommy Lee Jones), second from R, talks with Mary Todd Lincoln (Sally Fields) in this still from “Lincoln.” Courtesy of DreamWorks
PHOTO (Insert B): The Supreme Court in Washington. REUTERS
PHOTO (Insert C): President Lyndon B. Johnson talks with Martin Luther King Jr. in the White House. Courtesy of The LBJ Presidential Library