Friday, March 8, 2013

Rights for Me and Thee: Howard University Files Amicus Brief Supporting Marriage Equality

Uh-oh. As I just noted, one of the most predictable tactics of the hard right in the U.S. (including not a few U.S. Catholic bishops) is to seek to play the rights of one targeted minority against another targeted minority--to play the ancient politics of divide et impera to control minority groups by setting them one against another. 

This is an explicit tactic of the National Organization for Marriage, a group with heavy ties to the U.S. Catholic bishops and the Knights of Columbus. As internal memos of NOM disclosed due to court rulings in Maine in March 2012 revealed, NOM has deliberately developed a strategy in which it tries to fan the flames of hostility between the black and Latino communities and the gay community.

So I don't think either NOM or the United States Conference of Catholic Bishops will be pleased by this development in the case now before the Supreme Court challenging proposition 8 in California: the Civil Rights Clinic of Howard Law School, a distinguished historically black university, has filed an amicus brief in the SCOTUS case (see also Zack Ford at Think Progress). It argues that the arguments now being presented by various groups in American culture to combat marriage equality are essentially arguments "recycled" from the period of slavery and segregation. They're recycled arguments we've heard in the past to combat the notion of marriage for slaves and interracial marriage.

As the brief maintains,

[W]e are now long past the time when anyone would seriously claim that race-based marriage equality threatens the moral fabric of our civilization, is contrary to nature, or is harmful to children. Yet these arguments, however discredited, have not disappeared altogether. Instead, they have been recycled to oppose same-sexmarriage.

The brief's introduction notes that it specifically intends to oppose arguments that try to play the African-American struggle for civil rights against the LGBT struggle for civil rights: 

In seeking to answer the question [of whether marriage should be equally available to same-sex couples as to heterosexual ones], the Court will inevitably confront—directly or indirectly—the argument that the struggle for equal rights for same-sex couples does not constitutionally or morally equate with the fight against racial subordination. Amicus curiae respectfully submits this brief as a corrective to the flawed distinction too often drawn between equal rights for racial minorities and equal rights for all human beings.

The Howard amicus brief builds its case in a carefully crafted four-step argument: 

1. Marriage is a symbol of civil freedom, a marker of social equality, and a badge of full citizenship. 
2. Like marriage for same-sex couples today, interracial marriage was once widely considered a threat to social order and the institutions of marriage and family. 
3. Like same-sex couples today, interracial couples were once condemned as unnatural and pathological. 
3a. Opponents have framed both interracial relationships and same-sex relationships as purely sexual. 
3b. Pseudoscientific arguments were used to support anti-miscegenation laws and are currently being used to deny the right for same-sex couples to marry. 
3c. Judeo-Christian theological interpretations often have been invoked to challenge marriage for both interracial and same-sex couples. 
4. Like same-sex parenting today, interracial parenting was once considered damaging to the physical and psychological health of children. 
4a. Interracial marriage was onceconsidered physically harmful to children of interracial parents, just assame-sex marriage is considered to be today. 
4b. Children of interracial marriages were once thought to be in danger of psychological trauma, just as children of same-sex couples today.

As the brief's summary of its argument emphasizes, marriage is a "gateway" (my term, not the brief's) to social and civil privilege in American society. The attempt to exclude targeted minorities from marriage equality is, at heart, an attempt to exclude them from social and civil privilege, and so, at a very fundamental level, from full citizenship, from full human existence within the framework of civil society. The brief argues,

Marriage is a symbol of civil freedom, a marker of social equality, a badge of full citizenship, and a social resource of irreplaceable value. Yet this fundamental expression of human dignity has also been misused as a political sieve for separating individuals into a preferred class, to which society grants a broad complement of legal rights and privileges, and a lesser class, to which it accords less than a full measure of equality. Such was the case when slaves before Reconstruction and interracial couples in the days of segregation were denied full marriage equality.

And the arguments used to deny marriage equality to enslaved people of color and to interracial couples during the segregation period are, at base, the very same arguments being used by those seeking to deny marriage equality to same-sex couples today--with the same intent, which is to bar these couples from full participation in civil society and in its rights and privileges: 

Throughout the nation’s history, opponents of interracial marriage justified even criminal prohibitions against such unions by pointing to the purported detrimental effect of mixed-race birth and parentage, the supposed destruction of society if people marry between the races, and the so-callednatural law rationale for keeping the races separate.

The brief concludes,

In the final analysis, there is nothing new in the arguments against same-sex couples having the freedom to marry. Underneath the surface politeness of many of the submissions by Petitioners and their amici lie the same uncivil sentiments that animated the opposition to interracial marriage: the words may be less uncharitable, the phrasing less intemperate, but the debasing and degrading ideas are at bottom the same. However much opponents of marriage for same-sex couples may insist “this time it is different,” there remains an appalling familiarity to the refrain that allowing same-sex couples the same human dignity as everyone else will threaten social order, degrade individuals, and harm children.

And when the Howard brief notes that opponents of marriage equality today are using the same kind of dehumanizing misapplications of theological and biblical ideas that opponents of marriage for slaves or interracial couples used in the past, guess what (inter alia) it cites as an example of that prejudicial use of biblical-theological warrants: the 1986 Vatican document on the pastoral care of homosexual persons, which first defined gay human beings as intrinsically disordered. By emeritus pope Joseph Ratzinger. 

Proving the point I keep trying to make on this blog: you can't credibly argue for human rights for everyone when you seek to deny human rights to a targeted minority group. Thankfully, the brutal experience of slavery and segregation has taught many African Americans of strong conscience precisely that lesson, and these admirable human beings are willing to give testimony on behalf of other oppressed minorities, as they draw parallels between their experience of historic oppression and that of other targeted minority groups.

Too bad the U.S. Catholic bishops and leaders of the Catholic church in Rome seem unable to hear that valuable testimony. So much the worse for the Catholic magisterial argument on behalf of human rights at this point in history.

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