First published in The American Prospect online edition,
September 8, 2003.
New York City's Harvey Milk School - believed to be the
country's first public high school for gay, lesbian, bisexual and
transgendered students - recently opened in an expanded incarnation
after years as a small, two-classroom program. Whatever its
educational merits, the school is the latest example of a dangerous
and constitutionally troublesome trend: the rise of a parallel
legal and civic universe for homosexuals.
On the surface, this parallel universe looks like progress.
Pressed to give gays access to the benefits of marriage, Vermont
responded in 2000 by creating civil unions. California and Hawaii
now offer same-sex couples a form of registered domestic
partnership, with some of the state-conferred rights and benefits
of marriage. Other states are likely to follow.
Similarly, the Harvey Milk School is an attempt to redress the
bullying and harassment that gay high-school students often face
from their peers, as well as the indifference their situation
generates from unsympathetic teachers and administrators.
But other aspects of this parallel universe are more grudging
accommodation than substantive progress. Gays and lesbians are
adopting children, yet they often need to go judge-shopping, either
because state law makes adoption by same-sex couples difficult or
because judges simply use their discretion to deny such requests.
Meanwhile, the military's "don't ask, don't tell" policy allows
gays and lesbians to serve their country but forces them to stay in
the closet.
America is talking and arguing as never before about gay
equality, and, as measured by public opinion, gays are winning many
of these arguments. But visibility in the public square is not the
same thing as legal parity. And the emerging parallel universe is
actually denying gays the full rights of citizenship, forcing them
to settle for a mere illusion of equality.
After all, civil-union and domestic-partnership arrangements
have been politically palatable in part because they allow states
to sidestep the issue of giving gays the same marriage rights as
everyone else.
Alternative gay classrooms and schools, though well-intentioned,
signal the failure of public schools to maintain safe, tolerant
educational environments for all students.
In their quest to adopt, same-sex couples must search out
friendly judges and jurisdictions, often far from home, adding an
additional, gay-specific burden to an already difficult
process.
And, of course, "don't ask, don't tell" enshrines hypocrisy,
technically letting gays serve while allowing the Pentagon to avoid
its real problem: the fact that military discipline, so effective
in regulating other aspects of life in the armed forces, goes
strangely soft when it comes to anti-gay harassment.
All of this would be much different if race or ethnicity were at
issue. It's not just that military segregation and
anti-miscegenation laws were abolished more than a generation ago.
Under the strict judicial scrutiny that government-sponsored
discrimination receives when racial or ethnic minorities are
involved, there is simply no place for "separate but equal" legal
and civic institutions.
In the last 50 years, the Supreme Court's jurisprudence on race
has recognized government-sponsored discrimination for what it is -
not a matter of a few outdated or ill-considered laws but a
pervasive and historically rooted system of bias that once locked
blacks into second-class citizenship. More recently, the justices
have taken a similar approach to gender discrimination. The high
court's broad application of the 14th Amendment's equal-protection
clause now compels lower courts to automatically look with
suspicion on policies that provide differential treatment based on
race or gender. But not so with sexual orientation, because the
judiciary refuses to connect the dots.
Gays thus occupy a unique position: No other minority group is
the subject of as much public and political attention on so many
fronts while remaining the target of as much blatant,
government-sponsored discrimination - discrimination that the 14th
Amendment, as interpreted and applied by the Supreme Court, seems
impotent to address.
The Court's recent decisions on gays carry the rhetoric but not
the mandate of true equality. In 1996, Romer v. Evans
overturned a Colorado ballot initiative that imposed special
political disadvantages on gays. This summer's ruling in
Lawrence v. Texas struck down criminal penalties for
homosexual behavior. Despite the importance of their specific
holdings, both decisions shrank from declaring a broader
constitutional standard of review for anti-gay discrimination.
Such a standard would put lower courts and lawmakers on notice
that gays must be regarded as equal citizens in any sphere that
government controls. It would also shift the burden to government
to prove a compelling reason when it denies gays rights and
responsibilities that other citizens take for granted.
For the most part, gays accept - indeed, encourage - their
parallel universe in the name of incremental progress, and this is
understandable. After all, civil unions and domestic partnerships
are better than nothing. Too much fuss about adoption might lead to
more pestering by social conservatives to ban gay adoption
altogether. Recalling the torment they may have suffered at the
hands of bullying classmates, many gay adults probably applaud the
idea of separate classrooms or schools where gay students can have
some semblance of a normal education.
When separate institutions are created for them, gays even
appear to benefit from a sort of benign discrimination. After all,
many straight couples might prefer a civil union or
state-sanctioned domestic partnership over traditional marriage -
and nerds, punks and Christian fundamentalists might prefer their
own classrooms in the public schools. But not only is benign
discrimination just as illiberal as invidious discrimination, it
gives ammunition to those (like the New York state senator who has
filed suit against the Harvey Milk School) who would employ the
rhetoric of "special rights" and "reverse discrimination" to oppose
gay equality.
Such benign discrimination almost resembles affirmative action,
but it differs in one key respect: Affirmative action remains
salutary because it helps channel minorities out of spatial
segregation and into the civic mainstream. The gay parallel
universe, by contrast, channels gays who are already in the spatial
mainstream into legal and civic segregation.
The Constitution is the last place where Faustian bargains
should be struck. So long as voting majorities continue to exercise
their hegemony in order to maintain heterosexual supremacy in the
public sphere, American jurisprudence must come to grips with
reality and recognize gays as the sort of "discrete and insular
minority" - to the borrow the words of one famous 14th Amendment
decision - that the equal-protection clause has evolved to
protect.
Courts would then have to apply heightened scrutiny to open
doors for gays on equal terms to all government institutions and
programs. And gays would have to resist settling for
separate-but-equal treatment. Those who choose to formalize their
relationships should have the option of equal marriage. Those who
wish to serve their country should do so without hypocrisy. Those
who want to adopt should be allowed to without winks, nods and
hassles. And educators must work harder to ensure that gay students
have the same educational opportunities as other students.
Of course the judiciary cannot by fiat make gays equal in the
eyes of other citizens. Private discrimination is a different
matter. But gays will not be equal in the eyes of their fellow
Americans until they are equal in the eyes of their government.