Deirdre Keenan. Journal of Homosexuality. Volume 59, Issue 9. 2012.
Introduction
I begin with three premises regarding my title: First, any analogy between race and homosexuality cannot erase the particular historical and on-going atrocities and discriminations based on race and skin color—as African Americans, Asian Americans, American Indians, and Latino-Americans (most recently in light of Arizona, Utah, and Georgia legislation) and non-European immigrants can attest. My argument does not dismiss the fact that skin color has marked and continues to mark bodies for special punishment and necessary protection in the context of White supremacy and the privilege of Whiteness. Second, the analogy between race and homosexuality in the struggle for same-sex marriage has been forged in the struggles against discrimination and in the courts, long before the U.S. Supreme Court decision in Loving v. Virginia (1967) found marriage to be “a basic civil right.” Third, the analogy between race and homosexuality as a basis in the struggle for same-sex marriage often provokes anger and a charge of misappropriation of African American history and other race-based injustices. As a result, many in the gay community—whatever their race—reject the race analogy for fear of losing allies.
Despite concerns about its provocative nature, the race-sexual orientation analogy has been drawn by African Americans at the center of struggles for civil rights and who themselves have experienced racial discrimination. In the House debate on the Defense of Marriage Act (DOMA), long time civil rights activist and advisor to Martin Luther King, Jr., Congressman John Lewis (1996) of (D-GA), voiced his strong opposition:
I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation … I have known racism. I have known bigotry. This bill stinks of the same fear, hatred and intolerance. It should not be called the Defense of Marriage Act. It should be called the defense of mean-spirited bigots act.
Similarly, in 2007, on the 40th anniversary of the Loving v. Virginia (1967) U.S. Supreme Court decision, African American Mildred Loving also affirmed the analogy:
My generation was bitterly divided over something that should have been so clear and right … [N]ot a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought that he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. (Johnson, 2009 p. 289)
More recently, Anderson Bellegarde Francois (2009), Associate Professor of Law and Director of the Howard University School of Law Civil Rights Clinic, explains why “one of the nation’s most well-known among historically black colleges” filed amicus briefs for both the California and Iowa same-sex marriage cases (p. 105). The amicus briefs, in support of the plaintiffs, pointed out that the “very same arguments asserted by opponents of the right of same-sex couples to marry were also made to justify racial apartheid in general and against interracial marriage in particular’” (p. 107). The Howard University Civil Rights Clinic’s interest in the California and Iowa same-sex marriage cases, Francois says, was driven by a “need to place the debate in a larger human rights context” (p. 106).
My purposes here are, first, to survey the role the race-sexual orientation analogy has played in the debates on same-sex marriage; second to examine the analogy’s role within the context of race and queer theories; and, finally, to suggest a racial dimension to sexuality that marks the homosexual body.
The Courts and the Race-Sexual Orientation Analogy
Whether the race-sexual orientation analogy provokes sympathy or resentment, it has become inseparable from discussions about same-sex marriage. Francois (2009) notes the analogy has become
a rather tiresome debate about whether the struggle for equal rights for same-sex couples is the constitutional, historical, political, or moral equivalent of the fight against racial subordination, [but he also acknowledges that] in recent years, every single judicial decision that has sanctioned marriage equality for gays and lesbians has used the history of racial discrimination as a constitutional or moral yardstick. (p. 112)
Similarly Ross (2002) says, “Any legal discussion comparing cross-racial marriage to same-sex marriage must begin with Loving v. Virginia, the Supreme Court case that held miscegenation laws unconstitutional” (p. 271).
That now famous Loving v. Virginia (1967) decision stated that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness,” establishing ”[m]arriage [as] one of the ‘basic civil rights of man’” (p. 4). Writing the majority decision, Supreme Court Justice Earl Warren continued, “To deny this fundamental freedom on so unsupportable a basis as the racial classification embodied in those statutes, classifications so directly subversive to the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive … citizens of liberty without due process of law” (p. 4). Of course, key to this decision and its limited applicability to same-sex marriage cases is the distinction of “racial classification.” Racial classifications, like those based on national origin, gender, and religion, are subject to heightened levels of judicial review under the U.S. Constitution. Race has been identified by the Supreme Court as a “suspect class,” meaning that, when called to determine the constitutional validity of laws enshrining such distinctions, courts must apply strict scrutiny, requiring both that the government has a compelling interest in the classification and that the classification is as narrow and as least restrictive as possible. This most stringent standard of review requires courts to scrutinize closely the justification for and the means used to implement government-imposed racial classifications. The Supreme Court decision in Loving v. Virginia, therefore, struck down anti-miscegenation laws because they were based on racial classifications that the State of Virginia could not justify.
One reason Loving v. Virginia (1967) does not serve as a clear precedent establishing marriage as a basic civil right for lesbian and gay couples, then, is that sexual orientation, unlike race, does not enjoy the status of a suspect class for purposes of federal constitutional analysis. Still, Ross (2002) argues that the race analogy ought to hold, as it does with other forms of discrimination on the basis of sexual orientation, such as housing and employment, banned in many states and proposed to be prohibited by the federal Employment Non-Discrimination Act (ENDA), which has been debated in several congressional sessions. Ross notes, “Intellectually, prohibiting race discrimination in marriage statutes is a small step away from prohibiting sex discrimination in marriage statutes,” and she points out that “judges and lay people seem quite willing to analogize in the employment area from race to sex” (p. 271).
Even before the Loving v. Virginia (1967) decision, the race-sexual orientation analogy was invoked in the struggle for gay employment rights and protections, as Konnoth (2009) points out. He cites Kameny v. Bruckner, an early discrimination case involving Frank Kameny, who was “dismissed from his position as government astronomer in 1957” for his sexual orientation and who relied on the race-sexual orientation analogy in his court petition (p. 341). Kameny argued that “like the Negro, homosexuals were targets of prejudicial stereotyping” and consequent discrimination (p. 343). Although the Supreme Court rejected this claim, Kameny helped reshape the gay rights movement along the lines of the racial civil rights movement, arguing that “we must start off with the fact of the homosexual and his homosexuality and his right to remain as he is, just as ‘a Negro or a Jew’ have the right to retain these qualities” (p. 347). Influenced by Frank Kameny and her own work in the struggle for gay rights, Konnoth notes, Barbara Gittings shifted to a focus on identity rights “rather than defending against stereotypes of sickness, malfunction, disease, disorder” (p. 348). Notably, Gittings was instrumental in having homosexuality removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM; American Psychiatric Association, 2000).
The Race-Sexual Orientation Analogy and Opposition to Same-Sex Marriage
If Loving v. Virginia (1967) and other cases opened the door to a race-sexual orientation analogy, it also opened the door to apocalyptic diatribes in the same-sex marriage debates. Allowing same-sex marriage, like allowing interracial marriage, opponents have charged, violates God’s prohibition, threatens social order, offends the sanctity of marriage, undermines its purpose by replacing procreation with sexual desire, heralds contaminated children ill-equipped to fit societal norms, and promises a slippery slope into other immoralities. While the hysteria over interracial marriage has receded (although has not disappeared), parallels in the opposition to same-sex marriage continue to inflame discussion. Francois (2009) suggests that the onus “should be on opponents of same-sex marriage to demonstrate why arguments that time and experience have shown to be morally bankrupt, intellectually dishonest, and socially corrosive, in the context of interracial marriage should be dug up … and given credibility” (p. 107). Regardless of their lack of credibility—the warnings did not bear out with interracial marriage—the same apocalyptic charges drive opposition to same-sex marriage.
When he upheld the state’s anti-miscegenation law in the Loving v. Virginia (1967) case, at the circuit court level in Caroline County, Virginia, for example, Judge Leon Bazile invoked God’s prohibition in these now infamous words: “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents … The fact that he separated the races shows that he did not intend for the races to mix” (p. 2). Francois (2009) points to a similar 1867 Georgia court decision that considered interracial marriage contrary to God’s will and, therefore, “unnatural … deplorable … evil and evil only, without corresponding good” (p. 124). Johnson (2009) notes that “[s]o many courts relied on ‘God’s plan’ and natural law that one commentator has said ‘judges formed a virtual chorus’ on the issue” (p. 280). Ross (2002) cites an 1871 case, wherein a Tennessee court found that the “laws of civilization demand that the races be kept apart in this country,” and she asserts that the “Courts considered race restrictions part of the very definition of marriage, decreed ‘by God himself’” (p. 280). All of these anti-interracial marriage opinions were justified by assumed Judeo-Christian scriptural prohibitions against the “mixing of seed” and scriptural interpretations that saw Blacks as morally inferior to whites, as the cursed sons of Ham, Noah’s cursed son, or the consequence of Babel (Keenan, 2004).
While such opinions invoking God’s prohibition on interracial relationships are no longer socially tenable, opponents of same-sex marriage regurgitate the same claims with impunity. Sullivan (2004) suggests that while “faith is not equivalent to an argument,” neither for many people is it “equivalent to a prejudice” (p. xxviii). Opponents of same-sex marriage on the religious Right marshal scriptural passages from Genesis (“God made Adam and Eve not Adam and Steve”), the abominations in Leviticus, and the New Testament epistles of Paul, condemning men who “burn with lust one toward another,” among others. Dennis Prager (as cited in Sullivan, 2004), for example, a conservative Jewish intellectual and radio talk show host, cites the “unambiguous nature of the biblical attitude toward homosexuality” (p. 62). “God solved man’s aloneness,” Prager asserts, “by creating one other person, a woman—not a man” (p. 64). “Homosexuality,” he argues, “denies life; it denies God’s express desire that men and women cohabitate” (p. 64). The Bible, Prager argues, “adds a unique threat to the Jews if they engage in homosexuality … ‘you will be vomited out of the land’” (p. 63).
Extensions of God’s prohibition were arguments that interracial marriage threatened social order. Francois (2009) says, “Americans saw mixed-race unions as potentially detrimental to the overall existence of society” because they threatened to weaken “one of our most important tools for transmitting social values and maintaining social order,” a social order, he argues, based on white supremacist ideology (p. 114). Judge Bazile’s opinion in Loving v. Virginia invoking racial apartheid as the divine plan for human society reflects this ideology. As Francois points out, “[T]here remains an appalling familiarity to the refrain that allowing certain people the same human dignity as everyone else will threaten social order” (p. 135). The same arguments continue to emerge against same-sex marriage. Jean Bethke Elshtain (as cited in Sullivan, 2004), Professor of Social and Political Ethics claims that extending marriage rights to lesbians and gays is “to jeopardize the social goods that democratic and familial authority … promises” (p. 60). According to her, as a symbol of “social regenesis,” the institution of marriage ensures the maintenance of values critical to society and social order through “ritual, regulation, and persistence” (p. 59). In his dissenting opinion in Lawrence v. Texas, the decision that overturned Bowers v. Hardwick and struck down states’ right to criminalize consensual homosexual sexual activity, U.S. Supreme Court Justice Antonin Scalia sounded the social order alarm, declaring that the decision “effectively decrees the end of all morals legislation” (Sullivan, 2004, p. 109).
The threat to social order in both the interracial and same-sex marriage debates is grounded in the supposed threat to marriage itself. Johnson (2009) observes that “courts in interracial marriage cases feared that allowing interracial couples to marry would tarnish the institution and destabilize fragile one-race marriages” (p. 282). Johnson cites an 1877 Alabama Supreme Court‘s defense of the ban on interracial marriage, “Who can estimate the evil of introducing into their intimate relations, elements so heterogeneous that they must naturally cause discord, shame, [and] disruption of family circles” (p. 283). Francois (2009) says that interracial marriage was often characterized as “degrading to the very institution of marriage” (p. 107). Like the arguments against interracial unions, the 1996 Defense [emphasis added] of Marriage Act echoes this same concern for the institution of marriage under. That same year the editors of Commonweal, a Catholic magazine, stated their concern for the institution of marriage, arguing that “elevating same-sex unions to the same moral and legal status as marriage will further throw into doubt marriage’s fundamental purposes and put at risk a social practice and moral ideal vital to all” (as cited in Sullivan, 2004, p. 55). Also in 1996, the National Conference of Catholic Bishops similarly issued its official opposition to same-sex marriage: “At a time when family is under significant stress, the principled defense of marriage is an urgent necessity for … the common good of society” (as cited in Sullivan, 2004, p. 53). Despite this apparent necessity to defend the institution of marriage against a homosexual menace, Francois (2009) points out that opponents of same-sex marriage “still cannot conjure an answer to the question, ‘In what way would two gays marrying threaten the stability of straight married couples?’” (p. 141).
Adding to the threat to marriage are assumptions about the inability of Blacks and homosexuals to enter upon the supposed intent and obligations of marriage due to their inordinate sexual desire (a point I will expand on later). Francois (2009) notes that interracial marriage was regarded as an “unnatural and pathological sexual coupling” (p. 107). Ross (2002) says, in her study of the analogy, “that narrative discourse around mixed-race couples was sexualized, and that mixed-race love was viewed as something pornographic and essentially different from mono-race love” (p. 256). The same stereotypes apply in opposition to same-sex marriage. Again, Francois (2009) observes, “This time the argument is rooted in the stereotype of gays and lesbians as non-monogamous and amoral … based on the wholly unsubstantiated belief that homosexual couples engage in more sex outside of committed relations than heterosexual couples” (p. 116). Due to this sexual stereotyping, therefore, Francois says, “Gay people are seen as engaging in illicit behavior that deserves neither marriage nor the economic benefits that accompany it” (p. 122).
A similar alarm involves children of interracial and same-sex unions. Ross (2002) cites a Massachusetts Colonial Act in 1705 for preventing interracial marriage, entitled, “An Act for the Better Preventing of a Spurious and Mixed Issue” and an 1883 case in which Judge Henry of the Missouri Supreme Court reached the “bizarre conclusion” that “anti-miscegenation laws were necessary because mixed-race couples simply were incapable of producing children” (p. 266). Another Georgia trial judge, Ross cites, claimed that “Our daily observation shows us that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full-blood of either race” (p. 266; note here the conflation of race and gender as offspring of mixed-race couples become effeminate). Francois (2009) says, “At the heart of the anti-miscegenationist argument that mixed-race coupling produced damaged children … [was the] fear that children who were the products of such relationships were physically and mentally inferior to children born of same race parents” (p. 105). He points to a 1955 Virginia law that allowed “the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens” (p. 132). Francois also notes that in the 1948 Perez v. Sharp case—California’s precursor to Loving v. Virginia—the respondent argued that individuals who broke the anti-miscegenation laws were “‘the dregs of society’ and that their children would be a ‘burden on the community’” (p. 132).
Opponents to same-sex marriage purport the same concerns for children’s welfare. As Francois (2009) points out, “They maintain that children of homosexual parents face the double-barreled risk of developing homosexual interests and behaviors, which in turn heighten the chances that such children will face mental illness, prostitution, substance abuse, HIV, running away from home, promiscuity, anxiety, depression, cross-dressing, [and] premature sexual activity (p. 133). Ross (2002) observes the common assumption that “[g]ay men are themselves supposed to be ‘effeminate,’ and therefore boys raised by two fathers are considered to be in danger of becoming ‘effeminate.’ Yet the supposed dangers of effeminacy also lurk when two women raise boys, because boys supposedly need fathers to become real men” (p. 267). Sullivan (2004) acknowledges the focus on the effects of same-sex unions on children in the same-sex marriage debates, but states that the relatively few studies available show “no appreciable difference between children brought up in stable homosexual homes and those brought up in stable heterosexual homes” (p. 239).
Finally, and not so surprising, opponents to both interracial and same-sex marriage invoke similar logical fallacies. Johnson (2007) cites an 1872 Tennessee court ruling that interracial marriage would lead to “‘the father living with the daughter, the mother with the son’ and the ‘Turk or the Mohammedan living with his numerous wives’” (p. 282). Similarly, the conservative Professor of Jurisprudence, Hadley Arkes (as cited in Sullivan, 2004), conjectures that the most “notable accommodation [of same-sex marriage] would be the acceptance of several partners,” as well as “couplings of aunts with nephews, or even fathers with daughters” (pp. 157-158). The demand for homosexuals rights, in general, Arkes suggests, is tantamount to accepting all pursuits of pleasure including “sex with animals or the steamier versions of S&M” and pedophilia (pp. 157-158). Such wildly prurient imaginings need no defense, as Johnson and others have pointed out; in the 60 years since Loving v. Virginia, “[s]triking down the ban on interracial marriage obviously did not lead to polygamy or fathers marrying daughters” (p. 3). In 2003, Republican Rick Santorum, then a U.S. Senator, made similar correlations in his infamous statement in an Associated Press interview, “In every society, the definition of marriage has not ever to my knowledge included homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be” (“Excerpt,” 2003).
Current Discussion of the Race-Sexual Orientation Analogy in the Interest of Equality
Even among advocates for gay rights and same-sex marriage, there are those who oppose the race-sexual orientation analogy. Smith (2007), writing as a self-identified African American lesbian, for example, says that the “sameness argument” reinforces homophobia, racism, and sexism and distracts from the “real work that must be done to recognize how these different forms of oppression interact to maintain systems of power and privilege” (p. 389). In consolidating different experiences of oppression, sameness arguments not only fail “to force whites of all sexual identities … to recognize their racism and benefits via white privilege, but they also give black heterosexuals a ‘pass’ on their sexism and homophobia” (pp. 391-392). In other words, the sameness argument implies that “blacks [read straight] understand and appreciate the realities of homophobia” and that whites (straight or gay) understand and appreciate the realities of racism, both deeply flawed assumptions. Beyond its implied construction of gays as white against racial others, the analogy, Smith says, triggers in-group-out-group dynamics that impede cross-group alliances and provoke hostilities. Although she acknowledges that the analogy “may be effective and necessary in some instances—such as courtrooms and legal briefs in which LGBT advocates are bound by legal precedent,” sameness arguments, Smith asserts, do little to encourage interracial dialogue on LGBT issues (p. 382).
Francois (2009), too, acknowledges the race-sexual orientation analogy but argues that the analogy between interracial and same-sex marriage is not an effective strategy despite its centrality in the Howard University Civil Rights Clinic amicus briefs he helped write that were filed in the California and Iowa same-sex marriage cases. He admits that “I find myself in the embarrassing position of having to confess that … I am no longer certain that the analogy between opposition to interracial marriage and opposition to same-sex marriage is as irrefutably sound as civil rights advocates and legal scholars have sought to demonstrate” (p. 107). Instead, Francois argues that “a more apt analogy” is “between the struggle to accord equal marriage and family rights to newly-emancipated slaves and the current fight for marriage equality on behalf of same-sex couples” (p. 108). “The ban on slave marriage [emphasis added],” he asserts, “was rooted in a fundamental refusal to provide recognition to the humanity of slaves” (p. 108). The ban on interracial marriage, he emphasizes, “had less to do with a denial of humanity … than with a desire to defend against the political and economic threat to white supremacy interracial marriage posed” (p. 108). In contrast, same-sex marriage, Francois argues, does not pose a similar political and economic threat to heterosexuals, but like the marriage ban on slave marriage and its refusal to recognize the humanity of slaves, opposition to same-sex marriage is “rooted in a refusal to make equal space for gay couples in our national identity” (p. 108). Just as those who opposed slave marriage shifted their position after emancipation in order to bring the “new citizens in line with society’s mores,” Francois suggests a more persuasive argument against opposition is that same-sex marriage would bring lesbians and gay men in line with traditional morality (p. 109). This rationale based on an ideology of conformity is why some gay activists oppose same-sex marriage.
Eng (2007), for example, critiques the analogy for its domesticating effect, arguing that the Loving v. Virginia case “consolidated heterosexuality as a prerequisite for state recognition and the rights of citizenship” (p. 49). That consolidation, he says, formed the basis for “liberal enfranchisement and inclusion for certain gay and lesbian U.S. citizen-subjects willing to comply with its normative mandates” (p. 39). More central to his objection, Eng argues that “by analogizing same-sex marriage to this ‘settled history’ of interracial unions … racial liberation is configured as a politics of the past while queer liberation is configured analogously as a politics of the present” (p. 49). This narrative of “queer liberalism,” a term he uses to mark the “confluence of political and economic conditions” of domesticated queer enfranchisement, conceals “a long legal tradition bent on maintaining interlocking—indeed inter-constitutive—systems of white supremacy and heterosexism” (p. 50). In short, Eng believes that “such analogizing forecloses the possibility of reading homosexuality and race as intersectional, as co-constitutive, as coeval to queer freedom,” a possibility I to which I return below (p. 49).
Still, the race-sexual orientation analogy remains an important force. Konnoth (2009) points out the historical significance of the analogy in that Frank Kameny and Barbara Gittings modeled strategies for the gay rights movement on the racial civil rights movement. It is important to remember, he argues, “even when criticizing the race-sexuality analogy analytically, that gay legal identity is historically constructed largely around black legal identity” (p. 371). Moreover, Konnoth argues, “The use of the analogy helped modify gay identity to make us want to take action, to seek rights, and most importantly, to recognize our self-worth” (p. 372). Konnoth’s argument points out, as have many others, that minority groups have often internalized a sense of inferiority based on stereotypes created by the majority.
Both struggles for equal rights addressed this problem of internalized inferiority. Recall the mantra of the 1960s racial civil rights movement, “Black is beautiful” and “I’m Black and I’m proud” aimed to nurture Black self-confidence, and its similarity to the invocation of gay pride, to nurture confidence and affirm identity within the gay and lesbian community. In the context of stereotypes of homosexuality constructed by the majority, like the stereoptypes projected onto Blacks, Konnoth (2009) explains, “Gays had to carefully construct a gay identity, limiting it along the lines of the racial analogy in order to mobilize themselves and engage the majority in the first place” (p. 371). Despite the charge that the analogy “attempt[s] to slander with a brush of bigotry” those who oppose same-sex marriage (Johnson, 2009, p. 278), Konnoth (2009) believes that “… gay reliance on the race analogy has not been simply opportunistic and cynical, but an undertaking that has created and transformed gay understanding of themselves as a minority group and of the harms they face” (p. 372). Historically, Konnoth observes, “The verisimilitude of the analogy altered individual gay self-perceptions from that of religious outcasts and medical case studies to those of members of a political minority seeking legal rights” (p. 346).
More recently, in 2008, the California Supreme Court relied on the race-sexual orientation analogy in determining whether state marriage statutes were constitutional under the state constitution. The In re Marriage Cases (2008) decision was remarkable because no other judicial opinion had thus far drawn so directly and consistently on the analogy and specifically on the parallel between interracial marriage and same-sex marriage cases. For the purpose of this analysis, I limit my review of the California decision to its reliance on the analogy in establishing marriage as a basic civil right available to lesbians and gay men in California.
Central to the court’s opinion, as outlined in its introduction, is the framing of the right at issue in the case. Rather than asking whether individuals are entitled to access a state-sanctioned institution of same-sex marriage, as opponents of same-sex marriage often frame the issue, the court instead posits the questions as, first, whether lesbians and gay men, like heterosexuals, have the constitutionally protected right to marry a person of their choice, and, second, whether a statute limiting the access of the class of lesbian and gay persons to alternate forms of partnerships violates the equal protection clause of the California Constitution.
Because earlier cases have established that the right to marry is a fundamental constitutional right in California, and because various substantive rights inure in the right to marry, including the right to marry the person of one’s choice and the right to have those chosen relationships accorded due dignity and respect by the state, the court needed to determine whether a statutory scheme excluding persons from the institution of marriage based on sexual orientation unconstitutionally impinged on that fundamental right. In determining the scope of marriage as a constitutional right, the court drew directly on the 1948 interracial marriage case, Perez v. Sharp (1948), the California equivalent and precursor to Loving v. Virginia (1967), thereby reaffirming the importance and centrality of the race-sexual orientation analogy. The majority opinion states:
Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp … which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry … [despite the fact that] statutory prohibitions on interracial marriage had existed since the founding of the state, makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. (p. 3f99)
The Perez v. Sharp (1948) interracial marriage case established that the “right to marry properly must be understood to encompass the core set of basic substantive legal rights … that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process” (p. 399). The institution of marriage, as stated in Perez and affirmed in the 2008 California Supreme Court opinion, has been “long recognized at common law as essential to the orderly pursuit of happiness by free men’” (p. 422). The Perez court continued: “Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men” (p. 422). Just as the Perez court had recognized that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior, the In re Marriage Cases (2008) opinion concluded that “we now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights” (p. 429).
Key, then, to the recognition of marriage as a basic civil right in Perez v. Sharp (1948)—and critical to the case for same-sex marriage—was the right to marry the person of one’s choice and the right to have the state accord interracial unions the same dignity and respect as same-race unions. The recent opinion confirmed that these substantive rights may not be withheld from lesbians and gay men. In recognizing these rights, the In re Marriage Cases opinion also addressed the capacity of individuals to enter into loving and committed relationships, again making the race-sexual orientation analogy explicit; that capacity “does not depend upon the individual’s sexual orientation, and, more generally … , an individual’s sexual orientation—like a person’s race or gender [emphasis added]—does not constitute a legitimate basis upon which to deny or withhold legal rights’ (In re Marriage Cases, 2008, p. 7).
Because the marriage laws at issue create a separate class of persons who cannot freely exercise the fundamental right to marry the person of one’s choice, the California court also addressed whether the government’s classification and distinct treatment of lesbians and gay men, as compared to heterosexuals, in denying gays and lesbians equal access to marriage is constitutionally justified when the law promises equal treatment for all.
Here is a critical point: In In re Marriage Cases (2008), the California Supreme Court decided, for the first time in the history of this nation’s jurisprudence, to consider classifications based on sexual orientation—just as it considers classifications based on race—as inherently suspect. In so doing, the court established that, for purposes of the California Constitution, classification of lesbians and gay men would, henceforth, be subject to strict scrutiny when challenged in courts. The court applied strict scrutiny in its review of the marriage statutes at issue and ultimately determined that standard was not satisfied: the State of California was deemed to have no compelling interest in excluding lesbians and gay men from the institution of marriage. In other words, the court held that sexual orientation, just like race, as a classification in marriage statutes constituted differential and discriminatory treatment that was entirely unjustifiable under the state’s constitution.
Notably, the court also considered whether affording lesbians and gay men a separate institution, such as domestic partnerships or civil unions, was an acceptable alternative to marriage. Here, again, the court applied the race-sexual orientation analogy. In rejecting the rationale for alternative same-sex unions, the decision stated, the “court’s conclusion in Perez … that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as ‘transracial union,’ had been made available to interracial couples” (In re Marriage Cases, 2008, p. 435). The court emphasized that “retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects ‘second-class citizens” (In re Marriage Cases, 2008, p. 402). The race-sexual orientation analogy also served, then, to re-emphasize and reaffirm that separate is not equal.
Almost a century after a provision in California law declared that all marriages of White persons with “Negroes or mulattos” are declared to be illegal and void, the 1948 Perez v. Sharp 1948) interracial marriage case, at last, declared that discriminatory provision unconstitutional. In the same spirit of enlightenment, the 2008 California decision in In re Marriage Cases (2008) also challenged the authority of history: “In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights” (In re Marriage Cases, 2008, p. 429).
Of course, less than six months later, the effect of the In re Marriage Cases (2008) decision, concluding that laws denying same-sex marriage were unconstitutional and affording same-sex couples the right to marry in California, was rendered moot when a slight majority of California voters simply changed the California constitution. California’s Proposition 8, which went into immediate effect in November 2008, amended the state constitution, adding a provision restricting marriage to the union between one man and one woman. In 2009, the California Supreme Court upheld the validity of Proposition 8, finding in Strauss v. Horton (2009) that the amendment to the California constitution had been validly enacted, but, by its own terms, was limited to the designation of same-sex relationships with the term “marriage”—it had no effect on the substantive constitutional rights identified by that court earlier in In re Marriage Cases (2008). The lone dissenting justice, Carlos Moreno, observed the consequences of bending matters of equality to popular will: “it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate” (Strauss v. Horton, 2009, p. 138).
The Inseparable Nature of Race and Sexuality
Thus far, my discussion has focused on the analogy between race and sexual orientation as parallel categories of oppression and struggles for rights and on the analogy between historical legal treatment of interracial marriage and current debates on same-sex marriage. Now, I argue that the relationship between race and sexual orientation is not merely analogous. Rather, the socially constructed categories of race and sexuality are inseparable and sexual orientation—at least as it appears in current debates—is structured on racial terms. Ultimately, I suggest that racial thinking marks homosexual bodies.
Liu (2000) identifies racial thinking as a principle of social organization based on imagined communities united by “common substance” (p. 633). Racial thinking, she argues, “borrows its language from biology, particularly from a systemic vision of the natural world wherein hierarchies, differences, and even struggles are described as functional to the survival and health of the whole” (p. 633). According to Liu, racial thinking depends on racial metaphors of common substance that “exclude in the process of including” and that simultaneously “articulate the quality of relationships among members of a group” (p. 633). So, racial metaphors are used to build and maintain particular kinds of communities, based on exclusions. The power and flexibility of racial metaphors, Liu asserts, is in the malleability of notions of common substance.
As Liu (2000) and others have observed, older European concepts of race articulated a lineage-based system of entitlements and privileges which defined common substance as blood ties. Based on blood, those among the aristocracy thought of themselves, and were thought of, as a race apart. Yet, as Liu points out, the metaphor of common substance based on blood was a cultural construct, as even those who shared blood were excluded if they were products of illegitimate relations. Offspring identified as “bastard,” for example, were not included in the entitled race, although they shared common substance. This original European concept of a race of aristocrats, then, was structured on what we now label class differences. Only in the context of sixteenth- and seventeenth-century colonization did skin color become the mark of common substance and the organizing principle of social hierarchies. But as with the malleability of the common substance metaphor of blood, skin color did not create indelible and fixed categories of difference, especially in instances of mixed-race people.
Because racial distinctions claim that common substance is biologically transmitted, Liu (2000) argues, race as a principle of social organization and hierarchy focused particular attention on women as reproducers. This centrality of reproduction necessitated controls over women: on white women as the reproducers of the ruling elite and guardians of civilization, nation, and empire; Black and native women as reproducers of the labor force, socially prohibited but available, exoticized, and eroticized. Because colonial authority was based on racial distinctions, Liu posits, race was structured on gendered terms. From this perspective, race and gender too are not merely analogous concepts; they are inseparable and inseparable from (hetero) sexuality.
Similarly, in her cross-cultural historical study Wiesner-Hanks (2010) traces the connections between race and sexuality through notions of common substance. She explains, “The centrality of sex to the preservation of boundaries is something that nearly all human societies have recognized. They have developed laws and norms regarding marriage and other sexual contacts, both to keep their group distinct from others and to preserve hierarchies within the group” (p. 314). Race, in the early European sense, was central to defining boundaries and preserving hierarchies, and blood was the common substance that determined race. “Blood,” Wiesner-Hanks says, “[W]as also a way of talking about class differences in many parts of the world, with those of ‘noble blood’ prohibited from marrying commoners and taught to be protective of their lineage” (p. 314). Conceptualizing categories of class status and national identity as distinctions of race, common substance, and blood naturalized these categories “and made them appear God-given and innate” (p. 315). “Sexual contacts across such fundamental dividing lines,” she states, “could thus be made to appear threatening and dangerous” (p. 315). Notably, in the Early Modern period even before colonial contact, race and sexuality were inseparable in conceptualizing and maintaining social order. In the context of colonial contact, then, “blood remained a primary way to describe and monitor racial distinctions” (p. 315). Moreover, Wiesner-Hanks points out, “Churches were important agents in the creation and maintenance of those hierarchies … [and] Church officials had the authority to affirm (or alter) [emphasis added] one’s racial classification for the purposes of marriage …” (p. 315). Wiesner-Hanks’ study reveals the early connection between concepts of race, as “God-given and innate,” and sexuality, constructed to maintain social hierarchies—racial hierarchies—wherein elite group members were “taught to be protective of their lineage” (p. 314). At the same time, her observation that Church officials had the authority to affirm or alter individuals’ racial classifications for the purpose of marriage attests to the metaphorical nature of race and its malleability in the service of marriage.
Francois (2009) observes a similar connection between racial metaphors and the construction of social hierarchies in the early-twentieth century development of eugenics, the supposed science of racial categories. According to Francois, “Eugenics asserted the inferiority of blacks and drew the conclusion that the social and political divisions between the races were the result of fundamental biological differences … so the only way to maintain a civil society was to implement rigid boundaries between black and white” (p. 126). As in the early European notions of race, in early twentieth century eugenics, the key element in Blackness was understood to be blood, not appearance. Blood was “the marker though which blackness was conveyed” (Francois, 2009, p. 127). Eugenics, in its prime, Francois says, established racial principles used in anti-miscegenation arguments claiming that race is a valid concept, that races could be ranked hierarchically, that the ranking of races is immutable, and, therefore, miscegenation causes inferiority (p. 127). It also created racial stereotypes wherein “Black men were sexualized as having large sexual libidos; black women were assumed to be promiscuous” (p. 121). Wiesner-Hanks (2010) points to similar sexual stereotypes linked with race three centuries earlier, as “Chinese, Turks, Arabs, and Italians, for example, were seen as particularly likely to engage in sodomy” (pp. 319-320).
Somerville (2000) also traces constructions of race and sexuality in late nineteenth and early twentieth century emerging pseudo-scientific discourses of eugenics and sexology in Queering the Color Line. In it she argues that it is “… not merely an historical coincidence that the classification of bodies as either ‘homosexual’ or ‘heterosexual’ emerged at the same time that United States was aggressively constructing and policing the boundary between ‘black’ and ‘white’ bodies” (p. 3). Rather, she says, “Ideologies of gender and sexuality shaped and were shaped by dominant constructions of race” (p. 16). Within these intersecting discourses, Somerville demonstrates that “writers and thinkers conceptualized sexuality through a reliance on, and deployment of, racial ideologies, that is, the cultural assumptions and systems of representations about race through which individuals understood their relationship within the world” (p. 17). Those representations of race and sexuality through which individuals understood their relationships within the world focused on the body. “Comparative anatomy which had been the chief methodology of nineteenth century racial science,” she asserts, “gave sexologists a ready-made set of procedures and assumptions with which to scan the body visually for discrete markers of difference” (p. 25). That is, “Sexologists drew on these techniques to try to position the ‘homosexual’ body as anatomically distinguishable from the ’normal‘ body” (p. 6). She notes, “All these models constructed both the non-white body and the non-heterosexual body as pathological” (p. 17). Somerville cites a common claim, for example, repeated in medical journals as late as 1921, that African American women and lesbians both had an “abnormally prominent clitoris” (p. 27), a myth that reflects the sexualization of racially and sexually marked bodies. Sexology was so prevalent in dominant medical discourses, Somerville states, that it “held definitional power within the culture that sanctioned science to tell the truth about bodies” (p. 16). The “truth” that emerged from intersecting constructions of race and sexuality was that those bodies “culturally marked as non-normative lost their claim to the same rights as those whose racial or sexual reputation invested them with cultural legitimacy” (p. 9).
I argue that all of these constructions of race, gender, and sexuality, developing from early European concepts to theories colored by sixteenth and seventeenth century geographical exploration, and by eighteenth, nineteenth, and twentieth century pseudo-scientific discourses have residual effects in current discussions of same-sex marriage and in assumptions about the homosexual body. As I have noted elsewhere, whether based in religion or science, scripture or nature, evolution or social evolution, “No theory of race disappeared as others developed, and all are variously invoked in current discussions of race” (Keenan, 2004, p. 112).
Queer theory also acknowledges the intersectional (rather than parallel) ways dominant ideologies continue to represent cultural constructions of the body as fixed, trans-historical, and immutable. Somerville (2000), for instance, notes recent research into sexual orientation that, she says, demonstrates “a reenergized determination to discover a biological key to the origins of homosexuality” which attempt to “locate indicators of sexual orientation in discrete niches of the body, ranging from a particular gene to the hypothalamus to ridges on the fingertips” (p. 166). Although recent biological studies are often deployed to mark the natural origin of homosexuality, their impulse is startling, Somerville points out, in the context of the history of scientific racism. She raises questions about how “current efforts to rebiologize sexual orientation might reflect or influence existing cultural anxieties and discourses about racialized bodies” (p. 167).
This kind of racial thinking based on the body and metaphors of common substance continue to operate also in the construction of sexual categories to classify some relationships as privileged and entitled. This process of construction and entitlement thereby marks bodies as capable or incapable of socially acceptable intimacy and love. Oppositional discourse on same-sex marriage is marked by an implication that heterosexuals are a race apart, in the same way early European aristocracy was regarded as a race apart. This distinction, it seems, entitles heterosexuals not only to marriage but also the privilege to maintain the institution as exclusive. What unites them is heterosexuality, the common substance transmitted through the body. But just as the power and flexibility of blood or skin color as racial metaphors relies on their malleability, so does the metaphor of sexual orientation. The distinction of sexual orientations is not based on sexual activity itself, for how exactly do we distinguish between what heterosexuals and homosexuals do sexually? The power of sexual orientation as a metaphor that sets heterosexuals apart from homosexuals is the difference between desiring bodies and the bodies of their desire. As with racial categories of blood and skin color, the distinction between entitled desiring bodies and unentitled desiring bodies depends on legal (and too often physical) force. Just as racial distinctions were structured on gendered terms and maintained through rules of sexuality, sexual distinctions are structured on racial terms.
Ross (2002) sees a similar consolidation of social constructions of race and sexuality in the historical treatment of mixed-race marriages and in current treatment of same-sex relationships. Like Francois (2009), Ross argues that underlying the discussions of black-white relationships was a view that these relationships were particularly sexualized and that this sexuality was seen as perverse, deviant and pornographic. She notes that the opposition to interracial marriage was so pronounced in the South that sociologists debated whether sexuality was at the core of racial hatred (Ross, 2002, p. 261). “Mixed race couples,” she asserts, “are different [from same race couples] not because of what they do or don’t do in the bedroom but because of the meaning ascribed [emphasis added] to the couples” (p. 257). Similarly, I argue that the distinction between heterosexual and homosexual couples is not their sexual activity but its meaning as it regards the body. Francois (2009) argues that the sexualization of relationships is part of a devaluation process; sexualizing relationships stifles conversations about love and commitment—and replaces them with assertions about deviance” (p. 122).
A consequence of this process of sexualization, Francois (2009) says, is a common belief that “the feelings and intimacy that same-sex couples share is of such lesser quality than those shared by heterosexual couples [and] that to accord them marriage equality would devalue marriage itself and thereby destroy traditional society” (p. 141). The meaning ascribed to same-sex couples, like the meaning once (and perhaps still) ascribed to interracial couples, and the distinction of physical and emotional intimacies, is written on the body. The love those bodies make (if it is regarded as love at all) is simply not as good or as pure as the love that heterosexual bodies make, and, therefore, not entitled to the respect—or rights—that come with marriage.
In her examination of the intersection between race and sexuality, Ross (2002) briefly explores the question as to whether mixed-race attraction can itself be considered a sexual orientation (p. 280). She begins by asserting that based on sociological studies “[m]ixed race love is an orientation in the sense that although marriage itself is a choice, the attraction or ‘orientation’ is not chosen” (p. 280). In other words, she wonders, whether this particular attraction “could conceivably be categorized by race” (p. 281). Ross quickly emphasizes that regarding mixed-race couples as individuals with a certain “sexual orientation” makes “little sense politically” (p. 281). “[F]ocusing attention on the sexual aspect of mixed-race love would be demeaning,” she admits, “and constitute a step backward to a time when mixed-race couples were openly sexualized and ostracized” (p. 282). Her point in this brief exploration is this: If the consideration of sexual orientation is “damaging to mixed-race couples,” then it is similarly damaging to “use this term to refer to those who love persons of thethe same sex” (p. 282). The result, she argues, is that “[s]ame-sex marriage is viewed as a jump from the profane to the sacred—too large a jump for the majority of Americans” (p. 282). Thus, she concludes that sexualization and the term, sexual orientation, creates biases used to justify institutionalized discrimination. “The stereotyping of mixed-race couples as licentious … served to make others feel that they were not licentious and sinful … The sexualization of gay men and lesbians accomplishes precisely the same end” (p. 287).
Viewed another way, that exclusive distinction between the profane and the sacred can be seen as a distinction of intimacies, between rogue sexuality and intimate intercourse. That distinction of intimacies both marks and is marked by the distinction between racialized, homosexual bodies and heterosexual bodies. Eng (2007) argues that in the context of colonial history and slavery, intimacy became a defining property of the enfranchised individual, a legally protected “possession” of the right to privacy, “built on the repressed legacies of slave, indentured, and colonized labor” denied this possession (p. 52). The 2003 Supreme Court decision, Lawrence v. Texas, which overturned the 1986 Bowers v. Hardwick decision upholding Alabama’s ban on sodomy, allowed homosexuals, under designated conditions, the right to privacy, as Eng (2007) points out, by reformulating the legal problem not as a question of sodomy but as a fundamental right to intimacy (p. 39). In his careful reading of the Lawrence decision—its discursive shift away from sodomy to an issue of intimacy and its erasure of the specifically racial elements of the initial incident—Eng sees how queer liberalism depends “upon a constitutive forgetting of race “ (p. 47). The entitlement of intimacy, conferred on gay and lesbians willing to conform to its normative mandates, Eng argues, “emerges precisely as a sublation of race,” what he calls the “racialization of intimacy” (p. 52). Consequently, for Eng, the race-sexual orientation analogy continues to displace race and risks foreclosing important discussion of the intersections of homosexuality and race. “Those of us committed to a renewed politics of identity,” Eng says, “must concern ourselves with the problem of intersectionality in a putatively color-blind age” (p. 55).
It is precisely this intersectionality of sexuality and race that I want to address by asserting a racial dimension to homosexuality, in an age that is neither color blind nor sexuality blind. I suggest opposition to same-sex marriage and homosexuality is based on the early European concept of race, which has been incorporated into a national ideology that marks homosexual bodies as indelibly as skin color.
Here, then, is the sticking point of my argument—the marked homosexual body. Let me again re-emphasize that I am not constructing the homosexual body as White and the racialized body as heterosexual. I am working within the acutely problematic rhetoric of sexual orientation and the restrictive binaries as they are constructed in legal discussion and popular social discourse—heterosexual/homosexual, male/female, White/not White. Within these socially constructed categories, I am suggesting a racial dimension to sexuality that marks the homosexual body. How then is the homosexual body marked if not by something as visible as skin color? First, I want to get at the assumption implied in the question—that the homosexual body is not marked, although it is certainly marked for unequal treatment under the law in the case of marriage.
I begin, then, with that premise: The homosexual body is marked for legal discrimination. But, as some might suggest, in the absence of a visible mark the homosexual body is free to pass as unmarked for discrimination, free to pass, that is, as a heterosexual body. Consider this from the perspective of racial passing. The “standard racial pass” refers to the historical circumstance where a light-skinned person legally designated as Black passes for White (Harper, 1998). During the Jim Crow era, especially, and before the Civil Rights Act of 1964, passing allowed a legally designated Black person access to rights otherwise denied on the basis of race. Passing allowed a racialized body apparently unmarked by skin color to avoid racial discrimination. Passing, then, might appear to challenge the assumption of a marked racial binary.
“The racial pass,” however according to Harper (1998), “does no more than expose the logical flaw in the mechanism by which we conceive of racial identity,” the assumption that appearance bears “mimetic relation to identity but in fact does not and can not [sic]” (p. 382). The consequence of this logical flaw is that disclosure always threatens the passing racialized body (p. 382). Disclosure re-marks the body for discrimination and emphasizes the constant and equal vulnerability of the marked, re-marked, and unmarked legally designated racialized body. Compare that to an assumption that homosexual bodies are unmarked and can pass as heterosexual. As with racial passing, a homosexual might pass as heterosexual, an option assumed to provide sufficient safety from discrimination (an erroneous assumption so clearly deconstructed by Sedgwick [1990]); it does not of course, for a passing homosexual is still not free to marry the person of choice. As with racial passing, the passing homosexual is similarly always threatened by disclosure whereby the body is marked for legal discrimination. So, as in racial passing (whatever the skin color), whether a person passes as heterosexual or not, the homosexual body remains always vulnerable and, therefore, marked. More troubling and telling are three other implications: 1) that the option to pass somehow mitigates the discrimination authorized against homosexual bodies; 2) that out gays or lesbians are not regarded as a marked bodies because self-disclosed, even though the self-disclosure still operates to mark the body for discrimination; and, 3) that the legally authorized discrimination is acceptable.
According to Kavanagh (1990), ideology is a primary way of reproducing social relations and maintaining social order. Ideology works effectively, he argues, when everyone “understands and perceives the prevailing system of social relations as fundamentally fair on the whole” (p. 308). Within this ideology, dominant social subjects—read heterosexuals—are “freer to believe that their [privileges] are after all justified” and that “they can comfortably dismiss all those inconvenient and fanciful notions of how society … might be organized differently” (p. 309). How else do we account for the fact that although over 80% of Americans favor protecting homosexuals from discrimination in employment and housing, still only 53% support same-sex marriage (”For the First Time,” 2011, p. 1)? How else do we account for the fact that the Supreme Court to date has yet to hear a same-sex marriage argument despite the Loving v. Virginia (1967) decision that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness,“ or that only eight states and the District of Columbia allow same-sex marriage, or that federal legislation still refuses to grant over a thousand rights that accompany the right to marry to same-sex couples?
Religious opposition alone cannot account for these facts. Jakobsen (2010) argues that opposition is driven by what she calls “Christian secularism” that appropriates and selectively translates religious discourse for political ends and thereby creates a kind of public “panic or hysteria” associated with sexuality and the same-sex marriage debate (p. 6). Legal theorist, Martha Nussbaum (2010) accounts opposition to a “politics of disgust,” wherein people have a deep visceral aversion to homosexuals and “then cite that very reaction to justify a range of legal restrictions” (p. xiii). That disgust, she says, is a “fundamental refusal of another person’s full humanity” (p. xiii). Nussbaum points out that even “the U.S. Supreme Court has held that legal deference to this sort of ‘animus’ violates the idea of the equal protection of the laws” (p. xiv).
That politics of disgust, Nussbaum (2010) argues, concerns the borders of the body. “Its central idea is that of contamination,” which is projected onto the object of disgust (p. 14). “Projective disgust is shaped by social norms, as societies teach their members to identify alleged contaminants in their midst. All societies, it appears, identify at least some humans as disgusting … a stratagem adopted to cordon off the dominant group from its own feared animality” (p. 16). In the case of homosexuals, she argues, those primary objects of disgust are the bodily substances people encounter in sex or associate with the sexual body—semen, sweat, urine, feces, menstrual blood. “Projective disgust [also] involves a double fantasy: a fantasy of the dirtiness of the other and a fantasy of one’s own purity” (p. 17). Sodomy laws, for example, legitimized this binary fantasy, evident in Bowers v. Hardwick, and “had a demonstrable connection to violence against lesbians and, particularly, gay men” (p. 67). Such laws, Nussbaum argues “gave notice to people prone to violence that violence against that group was not going to be taken as seriously as violence against other citizens” (p. 67).
Although Nussbaum (2010) locates this dynamic “in what we might call yesterday’s America … meaning a very recent time from which we are slowly moving away—there is no doubt that the body of the gay man [and lesbian women have] been a central locus of disgust-anxiety” (p. 18). I do not think this disgust-anxiety projected onto the (racialized) homosexual body is confined to yesterday’s America, given the incidents of anti-gay bullying especially among youth. America has recently witnessed the tragic suicides of teenagers due to anti-gay harassment. Yet, some school districts have been slow to remedy the situation. Recently an anti-gay incident on the campus of Hope College in Michigan and a subsequent widespread petition failed to move the administration to include sexuality among its protected categories in the institutional antidiscrimination statement on the grounds that homosexuality violated the school’s religious values. Does such reluctance send a message that violence against lesbian, gay, bisexual, transgender, and queer youth will not be taken as seriously as violence against other citizens, that those bodies do not deserve equal protection?
The statistics of anti-gay bullying suggest something else about the marked homosexual body. In 2009, a study by the Gay Lesbian Straight Education Network found that nearly 9 of 10 lesbian, gay, bisexual, and transgender middle and high school students experienced harassment and nearly two thirds felt unsafe because of their sexual orientation or gender identity. Despite jokes about “gaydar” that can supposedly read encoded signs on a homosexual body, the clear implication evident in this national crisis of harassment of youth perceived as gay, whether gay or not, is that homosexual bodies are perceived as marked—bodies marked for discipline.
Marriage for gay men and lesbians might well serve as a moral yard stick to discipline homosexuals, “to bring them into line with society’s mores” (Francois, 2009, p. 109). As Eng (2007) points out, while the 2003 Lawrence v. Texas decision finally recognized a right to privacy for homosexuals, it is not a right conferred on all involved (p. 52). Rather, he argues, that “intimacy must be regarded as a type of racialized property right that remains unequally distributed among gay and lesbian populations,” distributed, that is, only to those willing to comply with hetero-normative dictates of intimacy (p. 43). Like Eng, Holland (2007) sees “state-sanctioned marriage [as] one the most insidious forms of institutionalized racism” (Haggerty & McGarry, 2007, p. 61). Duggan (1994) identifies marriage laws as participating in state policies imposing hetero-normativity. Browning (1996) recognized the repressive nature of same-sex marriage, suggesting that “[b]y rushing to embrace the standard marriage contact, we could stifle one of the most creative laboratories of family experience” (p. 23). Similarly, Polikoff (2008) points to the “disturbing influence of the conservative marriage movement” on the rhetoric deployed in pro same-sex marriage arguments and acknowledges that the right to marriage for lesbians and gay men “may come at the expense of law reforms benefitting a wider range of families” (p. 98).
Although Polikoff (2008) ultimately concludes that a “valuing-all-families” (p. 10) is a far more effective strategy for gaining inclusive social justice than marriage equality initiatives, she admits, “I support the right for same-sex couples to marry as a matter of civil rights” (p. 4). This competing interest between strategies for legal reforms that might replace marriage with more inclusive options and strategies for defining marriage as a civil right that includes same-sex couples is an important discussion already capably addressed by Eng, Polikoff, Duggan, and others. Whether or to what extent such competing political and legal strategies are mutually exclusive, as Eng (2007) suggests in his critique of queer liberalism, are important questions beyond the scope of this analysis.
Conclusion
On February 23, 2011, Attorney General, Eric Holder, sent a six-page memo to Speaker of the House, John Boehner, informing the U.S. House of Representatives that the Department of Justice would no longer defend DOMA against challenges by same-sex couples legally married under state law. Holder states that after review of recent cases and his recommendation, the President has concluded that DOMA, as applied to legally married same-sex couples, “violates the equal protection component of the Fifth Amendment,” and is, therefore, unconstitutional (U.S. Department of Justice, 2011, pp. 1, 5). The President has further concluded, Holder writes, that in the absence of a Supreme Court ruling on “the appropriate level of scrutiny,” classifications based on sexual orientation “should be subject to a heightened scrutiny” (U.S. Department of Justice, 2011, pp. 2, 5). This memo marks a sea change in the Department of Justice policy with regard to section 3 of DOMA, which confines marriage to “a legal union between one man and one woman” (DOMA, 1996, p. 30). Especially notable in the context of my consideration of the marked homosexual body is Holder’s statement, “While sexual orientation carries no visible badge … it is undoubtedly unfair to require sexual orientation to be hidden” (U.S. Department of Justice, 2011, p. 3). “Sexual orientation” is an abstract and troubled concept constructed within cultural and historical locations and circumscribed by popular discourse and opinion. That which is undoubtedly unfair to be hidden—whether that implies some kind of perceived nonnormative gender performance translated into sexual identity, or acts of self-disclosure, or phenomena discernable by those who swear by gaydar—cannot be dissociated from the homosexual body, which undoubtedly has been marked for discrimination.
In response to the Attorney General’s memo, Speaker Boehner announced that House Republican leaders would engage attorneys to intervene “to defend the law of the United States,” and criticized the President for “diverting attention from the budget battles to focus on gay marriage” (Steinhauer, 2001). Toward that end, Boehner said he would commit a half million federal dollars and hire the law firm King and Spalding. When the firm reversed its initial decision to defend DOMA’s constitutionality, Paul Clement, a partner in the firm and former Bush administration Solicitor General, resigned (Shear, 2011). He vowed to support Boehner and other House Republicans in the defense against challenges to DOMA. Other conservative groups rushed in to condemn the President and the Attorney General and to commend Boehner’s initiative to defend the institution of marriage against the appeals of same-sex couples. In his statement before the House Judiciary Subcommittee on the Constitution Hearing on “Defending Marriage,” Edward Whelan (2011), president of the conservative Ethics and Public Policy Center, charged that “the Obama administration has subordinated its legal duty … and is eager to obscure from the public its stealth campaign to induce the courts to invent [emphasis added] a constitutional right to marriage” (p. 2). I suggest that such responses, under the guise of legal duty, reflect both an unwillingness to consider how society might be organized differently and an ongoing politics of disgust aimed at the marked homosexual body. Against this animus, the American Civil Liberties Union (2011), referring to one of the lawsuits cited in the Department of Justice memo, Windsor v. United States, ended its statement to the subcommittee by invoking one of the victims of DOMA’s discrimination: “Someone like Edie Windsor, who spent a committed lifetime with her spouse and partner, should not be punished by the federal government simply because of who she loved and spent her life with” (p. 3).
Statistics on anti-gay discrimination, social and political animus against same-sex couples, and exclusive marriage legislation all suggest an ideology effectively at work wherein a heterosexual majority “perceives the prevailing system of social relations as fundamentally fair on the whole” (Kavanagh, 1990, p. 308) and believes that privileges based on the majority’s sexual orientation are justified. Understanding the racial dimensions of sexual orientation reveals the ways heterosexuals and opponents of marriage rights for lesbians and gay men continue to claim and protect entitlements justified by their privileged bodies that set them apart inside the bedroom and out.