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I realize that everyone is disappointed that at exactly the same time we have this historic election of an African American president, a progressive state like California seems to take a giant step backwards from full equality for same sex marriage. I also realize there is a lot of anger, and above all disappointment because it looks like many of the massive numbers of people of color who turned out for Obama also voted for Proposition 8, and there is of course puzzlement at how any voter can reconcile this vote for Obama, a vote against racial discrimination, with a vote for discrimination on the basis of sexual orientation.
I would suggest that everyone look at this with the cold, clear eye of political calculation to see what happened and figure out where we go from here. Some of the observations I'm going to make are not going to be popular, but I just ask you to realize I'm making observations about how people think about this issue, and not endorsing the way people think.
To put this in perspective, I also want to note that it's important to take a long term perspective. Brown v. Board of Education, which supposedly guaranteed desegregated classrooms, was decided 5 years before I was born, in 1954. In 1959 when I was born, almost no progress on a national scale had been made. As a school kid, I was an experimental lab animal in some half hearted bussing programs in the mid 1960s, and as late as 1970s -- 16 years after Brown -- when I visited my grandmother's farm in Virginia, there was still segregation of many facilities, such as lake beaches visible for everyone. Needless to say, it was only a half century after Brown that an African American was elected president, but schools and housing patterns in most cities are more segregated than they were in 1954
The Supreme Court, state supreme courts and state legislatures have only seriously begun to recognize the rights of gays and lesbians to be together, to have marriage-like rights, and to marry, within the last six or seven years. To expect that the implementation of these abstract rights into real life practice universally and nationally by now is just plain unrealistic by the standards of any other campaign for any right. There are going to be set backs ahead, just like there was one yesterday.
If you want to see these rights implemented universally and nationally, you're going to have to build some alliances and do a lot more organizing and educating, and part of that means looking in a clear eyed objective way at who voted for Prop 8 and why and figuring out which elements of those voters can be peeled off to your side.
I think a lot of assumptions are being made about why African Americans or other people of color would vote for Prop 8 -- assumptions that perhaps lump together different sub-constituencies who voted for it for different reasons, and if you lump them together too thoughtlessly, you lose the opportunity to figure out who to peel off.
There are a number of posts suggesting that is was just the impact of religion, which some people think is universally stupid. I don't really buy it. I grew up in the so called Black Church, and while some congregations of the Black Church are conservative, I don't think that's universal. The mainline Black Churches -- and here we are talking about the Baptists, African Methodist Episcopals, and Pentacostals -- are charismatic and evangelical, but they are not fundamentalist. If you did not grow up in a Protestant church, this may mean nothing to you. But the point is that ministers in the mainline Black Churches generally don't preach that the Bible is the inerrant word of God. Hence, argument from the Old Testament passages that seem to condemn homosexuality generally don't carry much weight. It's just not the way most mainline Black Churches rhetorically address various issues.
Also, the African American community, while more religious than average American communities, are experiencing the same secularization that has affected society. Not every African American goes to church, in other words, and I don't think everyone who voted for Prop 8 was religious.
Lastly, and I hope this doesn't sound like I'm stereotyping gay men, but my experience growing up in various churches was that gay African American men tend to play an important role in Black Churches. Black Churches tend to skew heavily female and elderly of both genders, with young Black men, even married men, being substantially under-represented. Black gay men are oddly over-represented in Black Churches, in my experience, often playing an important role in the "artistic" aspects of Churches, such as the choir.
It's an odd, uneasy alliance because the churches do indeed condemn behavior it considers "immoral," but there is also a kind of "wink wink, nodd, nodd" recognition of the contributions of gay men in most Black Churches. This is really hard to explain if you haven't experienced it, and the social millieu of the Black Church.
Generally, the Black Churches have this very ambivalent perspective on "sin" that is not like the perspective of white churches. It is assumed that everyone "sins." "Hang out all night Saturday and be in church on Sunday morning," was one of the themes of James Baldwin (himself a gay black man brought up in the church.) The joke of the pastor having affairs with the attractive young women also grows out of the peculiar ambivalence about "sin" and sex in the Black Church. Frankly, there is not an obsession with chastity and sex to drive homophobia in the Black Church they way there is in southern fundamentalist churches or even the Catholic Church.
So while the religious extremism may have played a part, it is not convincing to me that it's the whole story or even most of the story.
I think the question we need to ask, and it's a troubling question, is whether we think that most of the people who voted for Prop 8 actually want to prevent gays and lesbians from having the actual substantive economic and legal rights of marriage, or want to criminalize same sex relationships, or by contrast had some other objections to the concept of gay marriage or the way it was implemented in California.
As objectionable as it is to most, I have to conclude that there is little question that there is now an unassailable majority of voters who think gays and lesbians should have all the substantive rights of "civil unions" but who for some reason object to the idea of the word "marriage" being applied to same sex unions, and -- this is the main point I really want to make as it applies to people of color -- the idea of this marriage right being enforced by a court as a "civil right."
What I'm trying to get at here is not to justify this point of view, but to suggest that this is a constituency that you can eventually peel off to your side if you play your cards right.
My basic point is that there is a constituency that you can reach that objects to the idea of marriage rights being seen as a civil right. To understand why you have to understand a bit about the civil rights movement and some of the effects of the feminist movement. Many African Americans see the civil rights movement as sui generis -- unique -- because of the history of slavery and Jim Crow. This idea is to some extent recognized in constitutional law. I don't want to give a lecture in constitutional legal history, but basically the SCOTUS struggled for many years after the Civil War over what kind of "discrimination" the Constitution prohibited under the 14th Amendment. All laws discriminate to some extent -- dog license laws discriminate against dog owners, and taxi license laws discriminate against taxi cab drivers compared to other drivers, for example.
For a sad long time, it was not racial discrimination but discrimination against corporations that the Court said the 14th Amendment prohibited. Then around 1938, during the New Deal, the Court decided that the 14th Amendment prohibited discrimination on the basis of (1) race, religion and national origin, (2) political rights, like voting and (3) fundamental liberties like free speech. This gave the modern civil rights movement a very special, privileged position in constitutional arguments.
The 14th Amendment and anti-discrimination law really were about race.
In the early 1970s, women began using the Constitution to get equal gender rights. By the late 70s, though, there was some backlash in the civil rights movement because it became clear that civil rights doctrine benefited white women more than people of color. Just look at the management of any corporation or professional practice, or the incoming class of any university. It was a remarkable achievement but also an unintended consequence of the melding of civil rights and gender rights.
This is not my conjecture; there was a lot of discussion and scholarship about this in the late 70s and early 80s, and a lot of consternation about letting other groups use "civil rights language" before the main task of the civil rights movement had been achieved.
So when the gay/lesbian rights movement came along in the 80s, there was a huge amount of resistance from within the civil rights establishment to applying the language of civil rights to yet another group -- the majority of whom were seen to be white and middle class.
Over time, the civil rights establishment did indeed for the most part embrace the logic of GLBT rights, but even the GLBT movement came to recognize the importance of the symbolism of NOT using the term "civil rights."
You may notice that there is a kind of coded agreement about how the major establishment civil rights, feminist and GLBT organizations talk about rights: African Americans and other minorities talk about "civil rights"; feminists talk about "equal rights" or "reproductive rights"; and the GLBT establishment talks about "human rights." This is pretty explicitly worked out in order to prevent backlash among the civil rights constituencies -- the idea of another group using "our struggle" to advance their own positions in society. Like it or not, many in the "rights" constituencies see rights talk as a zero sum game -- if women's rights are protected, the rights of people of color won't be; if GLBT rights are protected, the rights of women won't be; etc.
When state courts began to grant same sex couples marriage rights, most of them were really careful not to use "civil rights" language (called "strict scrutiny") to find that gays had such rights, and in fact the gay rights organizations that litigated these cases DID NOT want to use that language either. The Massachussets court went out of its way not to use the civil right test of "strict scrutiny" to find gays had marriage rights, for example, but used (bizarrely) the test ordinarily applied to discrimination against business corporations.
California, however, used "civil rights" language to grant gays and lesbians marriage rights. More precisely, it used the "civil rights" language that had been created for gender -- "semi-strict scrutiny" -- to grant gays and lesbians marriage rights.
Now I'm not saying that every uninformed voter who voted for Prop 8 knows about the technical rights language used to grant marriage rights in California. But I am saying that it is well documented that within the African American community there is a backlash against the use of 14th Amendment "rights language" -- language that the Court itself recognizes was designed to end slavery and Jim Crow -- to help groups perceived to be largely middle class and white. I'm not saying it's right; I'm saying it exists.
In other words, I believe there are people who support the substance GLBT economic and legal rights under civil unions, and can be persuaded to support full marriage rights, but we're going to have to come up with some new language, or we're going to have to ensure that no one perceives the use of "rights talk" for gays and lesbians as a dilution of the continued urgency of the unfinished agenda of civil rights.
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