Wednesday, June 17, 2009

Homosexuality, Civil Rights, and Justice

Many people struggle to equate oppression and discrimination against gays, lesbians, bisexuals and transgendered to the civil rights struggle of African Americans in the United States. After all, homosexuality is an affirmative act, many believe a choice, but even if not a choice, it is nonetheless an act that could be suppressed, as opposed to being black which is a physical trait, which can neither be suppressed nor rehabilitated.

But the similarity if not clearly seen in the traits of the oppressed, is strikingly identical in those of the oppressors. Unjust discrimination of any sort is backed by common foes and follows a common path: a majority group conflates their numbers/power with exceptionalism/favourtism; ie. we are successful and plentiful relative to the minority, therefore we must be better or more righteous than the minority. But as the Bible is all about love and acceptance, the majority must justify their discrimination by pointing to scriptural proof-texts and interpretations that support their views – which is not hard, as the Bible is vague enough and self-contradictory enough to support pretty much any position you care to have.

Overtime, however, the minority begins to fight back against the majority and while they cannot change attitudes, they can change the law through court action. And, after years and years of justifying their discrimination based on religious and biblical terms, the majority must come up with some sort of rational, secular justification as separation of church and state doesn’t allow courts to uphold laws based on religious grounds. This is probably the only humorous part of the process as the majority struggle to make up practical rational for a bigoted policy.

Because courts are generally made up of the majority and the system tilted to the majority, it takes time for the legal system to impose justice, but eventually it does and, as civil society is forced to live in justice, eventually religious society realizes it too was wrong, and things slowly get better.

Consider miscegenation, or interracial marriage and the landmark case, Loving v. Virginia. In this case, the trial judge made clear why the law against their marriage was rational:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

On appeal, however, Virginia had to come up with a legitimate non-biblical rational. It tried several including “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” In shooting down the discriminatory law, the US Supreme Court all but laughed at these attempts to justify discrimination.

Anti-homosexual discrimination follows the same path, both socially and legally.

By way of example, compare the argument in Loving v. Virginia that anti-miscegenation laws do not violate the equal protection clause of the US Constitution because it treats blacks and whites equally – denying both races from getting married to someone from the opposite race:

“The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same.”

with the recent brief filed by the Obama Department of Justice defending the Defense of Marriage Act (yes, the act Obama said during his campaign that he was committed to repeal):

“As an initial matter, plaintiffs misperceive the nature of the line that Congress has drawn. DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.”

In both cases, the government tries to advance the weak argument that there is not discrimination, both blacks and whites and gays and straights are allowed to marry – just so long as they don’t marry the person they love.

The Loving court didn’t buy it:

“There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.”

Hopefully, they won’t buy the same argument made by Obama.

Perhaps the fight for equality for homosexuals isn’t clear cut identical to that for African Americans, but one things for sure – the arguments are the same, as are those making them.

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