When blacks fell in love with Obama, I listened to the more common explanations (e.g., viable candidate after Iowa or anger with Bill and Hillary), but I also wondered whether other factors that did not relate to his intellect and leadership could have also shaped his vast appeal. Specifically, I suspected that his traditional family status (along with appearance, education, class, etc.) privileged him and drew blacks to his campaign. So, I innocently started a thread on an academic bulletin board that asked the following question: "If Barack Obama were black and gay, would blacks remain as extremely excited about and protective of him?" One law professor, who was clearly overflowing with hope that day, asserted that being gay would not negatively affect Obama's candidacy and that America was ready for "James Baldwin as president."
In response, I argued that the professor's assertion denied the pervasiveness of homophobia among blacks and its negative impact upon black gays and lesbians. In addition, the professor's statement ignored the difficulty gays and lesbians experience when they seek political support from voters and lawmakers to secure basic rights to equality and liberty. Furthermore, I reminded my inspired colleague that while Obama had officially stated that he did not approve of same-sex marriage, he proudly allowed his wife to campaign on his behalf, and he valiantly defended her against rightwing attacks. By contrast, if Obama were gay, he clearly could not oppose same-sex marriage for political reasons, but then present his "husband" and kids to the public for campaign purposes (a popular tradition among heterosexual candidates). Finally, if merely supporting pro-gay issues could have harmed Obama's campaign, then being gay would certainly have jeopardized it. This final rebuttal ended the vigorous exchange with my colleague (who, to clarify, does not teach at American University). Today, I have decided to revisit my earlier question in light of Obama's sweeping victory and the pride it has generated among blacks and due to the recent controversy surrounding California black voters' opposition to same-sex marriage.
Although many commentators have argued that Obama's political success represents a monumental shift to the left among the nation's electorate, I have disputed this view (see links following this blog post). The recent passage of socially conservative legislation in several states has validated my belief that many voters who chose Obama did so to punish Republicans for the nation's poor economic conditions, not because they now suddenly support leftist agendas. For instance, voters in California, one of the bluest states, approved Proposition 8, a constitutional amendment that defines marriage in heterosexual terms. Obama, however, won California by an excess of 20 points.
Although a majority or near-majority of voters in all racial groups supported Proposition 8, critics, especially white gays and lesbians, have isolated heterosexual blacks for public condemnation due to their disproportionate level of support for the measure (assuming the accuracy of exit polls). 70% of blacks voted for Proposition 8, while just around 50% (or above) of all other racial groups endorsed the ban. Blaming blacks for the passage of the amendment, however, ignores polling data which demonstrate that the provision would still have passed even if blacks as a group had simply ignored the measure (i.e., declined to vote "yes" or "no").
Although blaming blacks for the passage of Proposition 8 is a severely flawed argument, blacks who approved the measure deserve criticism for a legitimate reason. By supporting anti-gay legislation heterosexual blacks harm blacks who are gay or lesbian, and they join forces with conservatives who seek to weaken civil rights for all vulnerable groups.
Black Opposition to Gay Rights Harms Black Gays and Lesbians
Although white gays and lesbians have been among the most passionate critics of blacks who supported the ban, the most likely victims of black homophobia are other blacks. Homophobia alienates blacks from families and friends and interferes with necessary political organizing. The dangerously sluggish response by black political and religious leaders to AIDS and HIV resulted, in part, from pervasive homophobia that receives tepid criticism (if any). In this setting, silence truly equals death. Blacks' collective reaction to a severe and deadly health crisis pales in comparison to their fervent criticism of Don Imus and their overwhelming enthusiasm for Obama. I am not condemning blacks' responses to Imus or Obama (although I thought the energy spent on Imus could have been used for more pressing causes), but a deadly health crisis among blacks should receive as much attention as a big-haired, unfunny shock jock.
Black Opposition to Gay Rights Legitimizes Conservative Legal Arguments That Harm Blacks and Other Vulnerable Groups
In addition to threatening the well being of black gays and lesbians, when blacks endorse anti-gay legislation, they help legitimize legal arguments that justify the mistreatment of all vulnerable groups -- including blacks. For example, blacks frequently explain their opposition to gay rights on the grounds that being gay or lesbian is a "choice" or "behavior," but that people lack control over their race, which they see as a biological imposition, rather than conduct. Many gays and lesbians, however, believe that their sexual orientation is neither chosen nor something that they can easily control. Most heterosexuals also believe they had little choice in their sexual orientation.
The Danger of Denying Legal Protection for "Chosen" Behavior
Even if gays and lesbians "choose" their status, this should not preclude civil rights protection. People of color and other vulnerable groups have often suffered mistreatment based on chosen behavior, and progressive lawyers continue to advocate that courts abandon a rhetoric of "choice" in antidiscrimination law. Nonetheless, employers have fired black women for wearing their hair in braids, while black men have lost their jobs for sporting goatees (both of which are fairly prevalent grooming styles among blacks). Also, police have arrested or harassed black men because of the way they dress. They have also harassed and subjected Latino and Asian-American people to mistreatment for their clothing as well. Flying while Arab is the new driving while black.
Latinos have lost their jobs because they dared to speak Spanish at work, which violated the employer's "English-only" rules, but some courts have validated these rules as being nonracial. Similarly, the Supreme Court has held that that a prosecutor did not engage in racial discrimination when he excluded all bilingual Spanish-English speakers from participating on a jury in a criminal trial with a Latino defendant. All of the excluded jurors were themselves Latino. The prosecutor's "excuse" -- that he feared the excluded individuals would not listen to the court translator because they already understood Spanish -- failed to pass the laugh test. Instead, it was (to borrow from Obama) simply "more of the same." Nevertheless, the Court found that the prosecutor had engaged in language-based, rather than racial, discrimination. The Court has not held that language-based discrimination violates the constitution.
In one of the cases where the court held that the employer did not violate antidiscrimination laws when it fired a black woman for wearing braids, the court concluded that because 1970s model Bo Derek wore braids, the employer's decision could not have related to race. Moreover, the Supreme Court has gutted the Americans With Disabilities Act by interpreting the statute to exclude protection for individuals who have a disability that medical treatment can control or diminish. In other words, if a person chooses not to correct or mitigate a disability through medical treatment (a high bar for poor people without health insurance), then discriminatory treatment against them is perfectly legal.
Existing Law Already Protects Chosen Behavior
Permitting discrimination against people due to behavioral or chosen statuses is not only irrational and harmful to people of color, but it would require the repeal of many civil rights statutes and an amendment deleting religious freedom from the constitution. Currently, state and federal civil rights laws prohibit discrimination on the basis of pregnancy, religious affiliation, membership in a labor union, current or prior military status, marital status, disability, citizenship status, and many other categories that are behavioral or voluntary.
State and federal law also create very important procedural rights for people who can no longer pay their mortgages. Federal law creates certain rights for people who attempt to borrow money from banks. And constitutional law protects an individual's choice to utilize contraception, to abort a pregnancy, or to refuse medical treatment. Oregon and Washington have given patients the right to seek life-ending medical treatment under certain circumstances. Finally, statutory and constitutional law throughout the country protects freedom of speech, which is inherently behavioral and voluntary. Racist Californians can legally call black people the n-word with impunity, but two black women cannot marry each other. And I thought we had come so far.
Ironically, many blacks also justify their opposition to pro-gay legislation by citing to religious values, but federal and state law prohibit discrimination against them on the basis of their religious status. People, however, "choose" their faith and can opt out of religion. Also, many elements of religion (e.g., praying, dressing, church attendance, and singing) are behavioral, but they still receive protection under statutory and constitutional law.
Why Call It "Marriage"?
Some blacks say that they support "gay rights," but they must stop short of supporting legal recognition of gay "marriage." Personally, I believe that same-sex marriage is a moderate-to-conservative political movement because it privileges "traditional" family arrangements over nontraditional ones. But the denial of same-sex marriage implicates very important questions of equal protection and due process. Creating a different name for a legal relationship just for gay people does not provide them with equal protection; instead, it gives them "different" and uneven protection simply because many heterosexuals cannot stomach equal access to marriage.
Also, endorsing "some" rights for gays and lesbians, but declining to support marriage is an argument for partial justice. This country's history of race relations, however, should deter any black person from embracing as pernicious a concept as partial justice. After abolition, white racists said that the nation had done enough to remedy slavery, and they challenged any further protection and assistance for the newly freed slaves. After Republicans used their political muscle to enshrine the concept of "equal protection of the laws" in the constitution, racists then opposed voting rights. After blacks received the right to vote, opponents engaged in or turned a blind eye to racial terrorism that made this right useless in much of the South until the 1960s. When the Supreme Court finally held in 1954 that racial segregation was illegal in public schools, southern opponents organized "massive resistance" to prevent the ruling from having any tangible impact. Every time the country has managed to move forward on questions of race, opponents have tried to limit or reverse that progress. One does not have to equate "black" and "gay" experience in order to appreciate the irony of blacks having a "fear of too much justice" (to quote the late Justice William Brennan, one of my favorite jurists).
Supporting Gay Rights Does not Require Blacks to Equate Race and Sexual OrientationFinally, blacks often state that they reject gay rights because gay people do not have the same experiences as blacks (because sexual orientation is chosen, can be hidden, etc.). But this argument wrongfully assumes that people should or must have the same experiences in order to qualify for civil rights protection. The same laws that prohibit racial discrimination protect Oprah Winfrey and Rodney King, despite their disparate experiences. Laws that ban discrimination on the basis of national origin protect the Irish and Africans. These laws protect blacks who can "pass" and those who cannot. Today, blacks are not slaves, but they have not rejected civil rights as unnecessary simply because they do not have the same experiences as slaves. After slavery ended and states enacted "Black Codes," Congress responded by passing the Civil Rights Act of 1866 and later ushering the Fourteenth Amendment through the ratification process. Opponents said that the Black Codes were not the same as slavery, even though they were clearly designed to keep blacks as low as slaves.
Legislators enact civil rights statutes in order to remedy and prevent a variety of social harms. These laws work best when they are flexible enough to respond to the many ways in which people experience discrimination and to deal with the reality that discrimination often morphs into different forms.
ConclusionAlthough I have criticized California white gays and lesbians for inappropriately blaming blacks for the passage of Proposition 8, I understand their anger. They must feel demoralized by the decision of a majority of voters in their state to strip them of a hard-fought constitutional right. And while I think it is naive to suggest that blacks should automatically support all progressive (or superficially progressive) causes due to their own experiences with marginalization, I believe that blacks must ultimately resist social conservatism or they lend credibility to arguments that harm blacks as well. Long before Californians used the initiative process to ban same-sex marriage, they had already banned affirmative action, bilingual education, and the extension of public healthcare to undocumented individuals (including children).
Rather than joining conservative movements that seek to constitutionalize bigotry and inequality, blacks and gays should form coalitions to strengthen equality and liberty for all vulnerable people. This will only happen when both groups deal with their respective homophobia and racism and when they decide to fight for the progressive changes that Obama's candidacy symbolizes for so many voters. Until Americans make social justice a high priority, Obama's change slogan will go down in history as a theme that successfully united people around his candidacy, but which failed to deliver meaningful change to subordinate classes.
Related articles on Dissenting Justice:
(1) Race and Same-Sex Marriage IssuesAnti-Gay Group Thanks Obama, Seeks to Exploit Black Homophobia to Constitutionalize BigotryBlack Californians and Proposition 8: Is White Gay Anger Justifiable?(2) Election Does Not Mean Left-Wing Shift2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But
Melodrama
Blacks Less Optimistic About a Coming Liberal UtopiaA Sober Look at a Democratic SweepSplit Ticket? What California's Battle Over Same-Sex Marriage Means for U.S. LiberalsStrong Support for California Anti-Gay Measure Proves That Many Blue-State Voters Embrace Red Agendas
