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'Separate but equal'now part of gay marriage debateBy Victor B. Flatt, Salt Lake Tribune from the Web, May 9, 2004 After a shocking and unexpected court decision, much of the nation finds itself stunned at the fast pace of social change that appears to be on the horizon. There is talk of civil disobedience, of the protection of historical values and the need for a constitutional amendment to stop "activist courts" from redefining American society. This scenario could be drawn from the current headlines about the issue of gay marriage, but actually refers to the aftermath of the Supreme Court's decision in Brown v. Board of Education 50 years ago where, in striking down public school segregation by race, the court announced that "separate but equal" had no place in our society. A revered decision in our constitutional jurisprudence, Brown is rarely cited outside the context of racial discrimination. But both the majority and dissent in the recent Massachusetts gay marriage case cite Brown -- the dissent for the proposition that state-sanctioned racial differences are unique and the majority for the proposition that any separate legal system for gay relationships is "separate and unequal." Both are right, and 50 years after this seminal decision, the underlying story of Brown can shed light on what is really going on in the gay marriage debate. Though racial segregation in schools and gay marriage are superficially about different issues, they share an important feature. Neither is primarily a legal issue. The real issue in both cases is social equality. In announcing that "separate but equal" was always unequal, the court in Brown made an important pronouncement about the role of law in social equality. The issue was not really about whether the black schools could be made equal to the white schools or, in today's marriage debate, whether we can provide benefits to gay couples that are similar to marriage. The issue is state-sponsored inequality. The courts in Brown and in Massachusetts recognized that any legal distinction between two otherwise similar groups can only exist to buttress the social belief that one group is better than another. The court in Brown recognized that it was not the role of law to perpetuate and support such a social norm. Individuals, groups, politicians, churches and clubs may believe anything they want. No ruling on gay marriage or racial segregation can change that. But social conventions are delicate things. If based on a mere belief and not a truth, they must often be propped up by the law to survive. This was the fear in Brown and the fear today with gay marriage. At the time of Brown, many whites worried that if the law says that black children are good enough to go to the same schools as our children, they might think they are good enough to have the same jobs, join our clubs or go to our churches. They might become social equals; they might even marry our white children. Black people were not inherently inferior to white people. A law was needed to keep them at bay. Similarly, all evidence indicates that gay people have the same capabilities of functioning in our society and family life as do straight persons. They are citizens and parents and form stable, long-lasting relationships. They can also be bad parents, bad people and form bad relationships, just like straight persons. The only difference is how they are treated under the law. Thus, if we accept that gay couples are equivalent to heterosexual couples when it comes to state-sponsored marriage benefits, gay people might come to be accepted on a par with straight people in general. They might compete for the same jobs and live in our neighborhoods. Our churches might decide to perform a religiously sanctioned marriage for gay people. If seen as acceptable, our children themselves might become gay. The issue in Brown and the issue in gay marriage is how far we will go to make the law support our social beliefs. In the aftermath of Brown, American society rejected a constitutional amendment to enshrine "separate but equal" forever. What will we do today? Victor B. Flatt is the A.L. O'Quinn Chair in Environmental Law at the University of Houston and a scholar of environmental and sexual orientation legal issues. He presented these ideas at the Houston Bar Association's joint faculty meeting on Brown v. Board of Education at 50, held Feb. 24, 2004.
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