Gay Marriage Compared to Civil Rights Movement

Life is quite a bit different now than it was in 1896. Society continues to grow as a whole, and with that growth, new possibilities present themselves. Societal standards do not, for the most part, fluctuate wildly. Ever heard the phrase “history repeats itself” or how about the one, “if you do not learn from history, you are doomed to repeat it”? Seems that throughout the years, we have repeated many variations on the same theme when dealing with constitutional law, and here we are in 2005, watching the courts play out issues that are, in the opinion of some, strikingly similar to those played out in 1896.

Plessy vs. Ferguson became the case that is often referred to as the “separate but equal” ruling of 1896. Even though the opinions of the judges do not specifically state “separate but equal”, this case did set a precedent that “facilities for blacks and whites violated no constitutional law as long as the facilities provided to both were deemed to be equal.” It took 58 long years to have this overturned, but finally, in 1954 Brown vs. Board of Education did so. After over half a century of inequality, masked in the name of “separate but equal”, Brown vs. Board of Education ruled in a unanimous decision to overturn Plessy vs. Ferguson, realizing that no matter how hard facilities tried to make things equal, separate would never be equal. We learned from this historic case a stark reminder of one of the most poignant phrases in American history: We hold these truths to be self evident that all men are created equal.

For over ten years after the Brown decision, many southern politicians were on record as regarding the decision a “clear abuse of judicial power”. Desegregation was a long and arduous venture, and the civil rights campaigns of the 1950s and 60s pitted whites against blacks, whites against whites, and divided a nation on a political and human rights platform that some say to this day has yet to be resolved.

Has anything been learned from this piece of American history? Some would say yes, that the work done to provide equal rights to all citizens has greatly improved our country, and it would be hard to disagree with this idea. However, if we are truly doomed to repeat mistakes when we do not pay attention to our own history, then the United States finds itself once again in the throes of a civil rights campaign, where a small, but statistically significant, group of people are denied the rights of the majority. A completely new kind of “separate but equal” is currently in the making.

The issues that are currently part of this new civil rights campaign: gay marriage and civil unions. To avoid getting into the history of marriage and the strict definitions placed by religion and government on marriage itself, let us deal only with the history of marriage in America. For as long as America has been a country, marriage has been available, and it was always deemed to be between a man and a woman. While it was not always written that way, it was common knowledge that this is what a marriage entailed. Over the course of American legal history, the rights and privileges of marriage have changed, but the parties to a marriage have always remained the same: one man, one woman.

With a new age of acceptance and tolerance making it much more socially acceptable for gays to live without as much fear of ridicule and persecution, America has found an increasing number of men and women who are living their lives openly homosexual, seeking partners to share their lives. This group of individuals now finds that, even though they are willing to bear the responsibilities, they are not allowed the basic rights afforded to their heterosexual counterparts – marriage. With marriage being denied to same gender couples, many other basic protections both personal and legal are not afforded to couples who just happen to be the same gender.

With an increasing desire from the gay community, and equally increasing support from certain members of heterosexual community, and with television, music, and media showing gay couples and gay persons in a light not before seen, the gay civil rights campaign is swinging into full-force. Anti-gay discrimination laws are popping up all over the place, in every state and even at the federal level. With its momentum, change is being effected. However, the resulting change, while a step in the right direction, is leaving much to be desired from a legal standpoint, and to a gay couple, from a very personal standpoint as well.

While marriage is attempting to be “defined” in a manner that it has never had to be defined before, we find ourselves facing things such as the “Defense of Marriage Act” as well as several state rulings on the definition of marriage. While one side of the struggle rushes to put into place legislation to keep the status quo, the other side is pushing to challenge preconceived notions and bring about change for the equal rights of all Americans, heterosexual and homosexual.

Amid cries of “judicial tyranny” and moans of “legislators, not judges, should make law” we find the right-wing conservatives losing ground in their battle to define marriage and keep the status quo. The changes are already coming, and the momentum is building. Already we are seeing a repeat of our own checkered history, when courthouses, which, through judicial opinions, have opened their doors to allow gays to apply for marriage licenses, are being picketed and judges condemned for those decisions. While it is unlikely that the National Guard will be called in to squelch the uprising like the one seen in Little Rock so many years ago, the protests are not dissimilar: a human and civil rights campaign of enormous proportion.

One group is fighting to keep another group from sharing in something that they have long held, and another group is fighting to be treated equally under the law and in the eyes of the government. In turn, many states, wanting to “do the right thing” under civil rights, have come up with a knee-jerk reaction: civil unions.

Vermont has passed a Civil Union Bill, which states in the text of the bill that in order to qualify for a civil union, the parties must “be of the same sex and therefore excluded from the marriage laws of this state”. Connecticut has done something similar, making the requirements for applying for a civil union specifically between two individuals of the same gender. By allowing these civil unions, the states that have chosen to do so have taken a great step forward in the fight against discrimination and denial of civil rights to gays. However, the one thing that was not taken into consideration is that, by doing so, they have now created a situation of “separate but equal”.

A new means of discrimination has been created, in that only same sex couples are allowed to enter into civil unions. While this would seem fair, since opposite sex couples have marriage, the civil unions are indeed discriminatory in excluding heterosexual couples from choosing to enter into a civil union if, for whatever reasons, they do not wish to become married. This exclusion of heterosexual couples in the civil unions is well-intentioned, but is the very reason why civil unions are creating a “separate but equal” situation.

Specifically reading the text of the Vermont bill, find the following excerpt:

“The purpose of this act is to respond to the constitutional violation found by the Vermont Supreme Court in Baker v. State, and to provide eligible same-sex couples the opportunity to “obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples” as required by Chapter I, Article 7th of the Vermont Constitution.”

In reading this, one can only ascertain that the state of Vermont is attempting to provide same sex couples with something that is equal to marriage, but separate from it. Our American history should have shown us that whenever we provide essentially the same benefits, but make those benefits separate from the majority, there is no way for those benefits to be equal.

The battle rages on as, state by state, the issue of gay marriage and civil unions is being addressed. Hanging over all of these state decisions is the proposed United States Constitutional Amendment to define marriage as ‘one man, one woman’ for the entire country, while also prohibiting same sex couples from marrying. Again, our own American history has shown us that our Constitution works best when it protects the rights of American citizens and not prohibits them. The amendments that were once in place to prohibit actions of the American people have been dissolved, and we are left with only the amendments that protect human rights. An amendment prohibiting same sex marriage would only be repeating our past, resulting in inequity for all American’s, not just gay Americans. Clearly, the law and our constitution support the equal rights of all Americans to share in the same benefits and responsibilities as every other law abiding American citizen. Eventually, the due process of our legislative and judicial systems will surely come to the intelligent and historically-based, appropriate decision that allowing gay marriage is the only ‘American’ thing to do.

Until then, we find homosexuals pitted against heterosexuals, and heterosexuals against heterosexuals, and in some cases, even homosexuals against homosexuals in this fight for equal treatment under the law, just as we found blacks and whites fighting against and with each other so many years ago. Once again, our nation is divided in the fight for equal rights for all citizens. Hopefully, this time around, Americans will not have to wait 58 years to witness the equal opportunity and treatment for all its citizens in sharing the rights, privileges, and responsibilities that marriage, as an American institution, will bring.

Sources:

Vermont State Constitution
Connecticut State Constitution
United States Constitution
Plessy Vs. Ferguson, judicial opinions
Brown Vs. Board of Education, judicial opinions
Vermont Civil Union Bill, text
Connecticut Civil Union Bill, text