Why the Supreme Court Said “No to Blacks, Yes to Gays“

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(Photo: Jeff Donaldson / Flickr)

On Tuesday the Supreme Court overturned a central part of the Voting Rights Act, one of the main accomplishments of the Civil Rights Movement for African Americans. Southern states, consistent with the racist legacy of slavery that has shaped their politics for the past 150 years at least, are now rushing to put in place new rules to make it more difficult for African Americans and Latinos to vote.

Then on Wednesday the Supreme Court declared the “Defense of Marriage Act” unconstitutional, thereby opening the door to gay marriage and sustaining a lower court decision that had overturned the California state proposition that had tried to prevent those marriages.

Why is it “no to Blacks and Yes to gays?”

Don’t expect a constitutional argument here. As the Supreme Court minority on Voting Rights made clear, the argument for dismantling the victories of the Civil Rights era are pathetically inadequate. And, one might add, hypocritical given that those who overturned that Congressional Act often proclaim their opposition to an “activist judiciary” that interferes with legislative decisions.

The answer is purely political.

For the past twenty years with deep commitment, and for ten years with growing intensity, the gay and lesbian communities have relentlessly pushed forward their convincing arguments that it is a morally indefensible double standard to allow heterosexuals to marry and to deny that same legal right to homosexuals. That such a double standard has been part of the legacy of the human race for thousands of years made no difference. The key point is that largely thanks to the successes of the Civil Rights movement of the 1960s, our society has embraced the notion of equal rights with self-congratulatory enthusiasm, and in this light the unequal treatment of gays and lesbians could be seen as inconsistent and hurtful.

I was one of the many clergy people who for the past decades performed marriage ceremonies for gays and lesbians in defiance of this double standard, even though the marriages only had religious but not state-sanctioned validity. And there were millions of other Americans who, in small ways and large, poked fun at homophobia, ridiculed religious provisions that seemed to embrace this double standard, and celebrated as cultural stars the athletes, politicians, academics, professionals and other symbols of cultural authority who came out of the closet. Often their personal stories were deeply moving, and over a very short period of time, a majority of Americans came to sympathize and then finally to support homosexual rights and to detest those who would oppress gays and lesbians. Yesterday I was asked to represent the Jewish community at a press conference in San Francisco celebrating this wonderful victory. I pointed out that one of the central strengths of the advocacy that had taken place by gays and lesbians was their ability to subtly but powerfully shift the discourse from the abstract notion of “rights” to the very concrete notion of love. Over and over again in this struggle gay and lesbian couples have declared their love to each other and asked, “What right does the government have to invalidate our love?” One of the major points Tikkun and the Network of Spiritual Progressives have tried to show the liberal and progressive forces is that a “rights-oriented movement” is less effective than one which can put the desire to live in a loving world at the center of a progressive agenda. And this is precisely what the gay and lesbian movements did in advocating for gay and lesbian marriage. As more and more Americans learned of the aspirations of homosexual couples to have their love publicly affirmed, their hearts melted and they began to support gay marriage. This should be a central message to help reshape the Left agenda in the years ahead.

During the same decades, even though a small percentage of the African American community (mainly middle-class professionals, business people, academics, writers, music and television stars, and sports and cultural figures) has been able to enjoy the new opportunities made possible by the legal equality won by the Civil Rights Movement, the majority of Black people in the United States have experienced a sharp decrease in substantive equality. Civil rights gains gave way not to equity, but to a re-entrenchment and worsening of economic inequality, lack of access to health care, unemployment, lack of access to healthy food and crime-free communities, and increasing underfunding of middle and high schools in Black communities not just in the South but throughout the United States. And at the same time, a whole new regime of ultra-militarized policing has torn apart Black communities and made mass organizing incredibly perilous and difficult.

Why has the gay community had such victories during this period, even as racial equity has worsened so sharply? One part of the answer lies in how much more difficult it is to build a movement around struggles for legal equality rather than substantive equality in a neoliberal society. In movements for legal equality, like the gay marriage struggle, an instant cross-class solidarity is generated by the realization of an oppressed group that due to a shared identity, all members of the group will face the same discrimination unless they come together through a mass movement to demand a legal change. Legal equality does not necessarily translate into substantive equality, as has been clear in the experience of communities of color following Civil Rights victories, but once legal equality has been won, it is much harder for a community to maintain a coherent mass movement and not become splintered along class lines, giving in to our society’s dominant narrative that exhorts us each to look out for our own self-interest and see other’s misfortunes as a result of individual bad decisions rather than proof of structural injustice.

And there was another important lesson to be learned from this victory. Six or seven years ago most people in the liberal and progressive worlds, though they supported gay rights, thought that the struggle for gay marriage was quixotic and completely unrealistic. Thankfully, marriage equality advocates refused to be realistic, and instead pushed forward on why marriage equality was desirable. Contrast that with the Obama administration’s typical behavior over the course of the past years, consistently staying away from any serious fights for principles (for example, refusing to consider a “Medicare for everyone” approach and instead embracing the deeply flawed Obamacare approach with no serious constraints on how much insurance companies can raise the cost of their coverage, while compelling all Americans to buy such coverage. The lesson here: Don’t scale down your struggles to fit what the media and the politicians tell you is realistic. Struggle for what is needed to achieve a world of love, generosity, ethical and ecological sanity, social justice and peace, and awe and wonder at the grandeur and mystery of the universe—don’t settle for less.

Meanwhile, in the past decades, while Civil Rights leaders correctly pointed out the persistence of racist inequalities, they too often relied on the courts to rectify the problem. Instead of developing new generations of activists, the Civil Rights leaders imagined that they could win all that was needed through the legal system, ignoring the way that system is stacked on behalf of the status quo. The lack of popular mobilization of poorer African Americans into the kind of disruptive non-violent demonstrations that Martin Luther King Jr. and others organized in the Sixties was accompanied by a growing identity-politics consciousness that reached its apex in Black support for Obama which has remained at approximately 95% approval even while Obama delivered nothing for the Black community while championing the needs of the wealthy and the banks and Wall Street that were often contributing to the growing economic divide between Blacks and Whites. In turn, Obama took his Black support for granted, and largely ignored their needs, removing the struggle for economic equality from the public agenda and consciousness.

Yet there is a deeper reason why the Supreme Court could be moved to support gay rights but not the rights of African Americans, and it lies in how great a challenge the movement poses to the neoliberal political and economic order itself. Though the marriage equality movement challenges traditional social norms in U.S. society, the movement is at root a bid for inclusion in the current system rather than an attempt to shake up the system itself. Any attempt to fight for substantive racial equity in our society, on the other hand, would necessarily involve a deeply threatening overhaul of our current economic system, which relies on the continued existence of a large poor and unemployed population. Working people inclined to organize or strike for a living wage or for more democratic power over their work conditions, much less for work that is meaningful and productive for the society always have before them the image of the poor and unemployed and their suffering as a reminder that they too could be in that category and without any substantial safety net under them should they start to press corporations to change and democratize. The struggle for inclusion in the system and for formal rights is very different than a struggle for substantive equality, not just the “opportunity” to make it within a mostly rigged system.

Yet another part of the answer lies in the massive upsurge in policing and incarceration of the Black community—an upsurge in policing experienced most acutely, perhaps, by transgender, gay, and lesbian people of color, and that has restructured daily life in Black communities nationwide. In the rare moments when attempts at mass uprising have emerged from Black neighborhoods in recent years, they have immediately faced intense repression from highly militarized riot police using tear gas, pepper spray, helicopter surveillance, rubber bullets, and more. We need to believe that it is still possible to stand up to these militarized police forces and transform our society through nonviolent activism. But we also need to know what we’re up against and understand how we will truly need a broad-based movement to bring about racial equity.

The Supreme Court’s decision on voting rights reminds us that racism against Blacks remains far more deeply implanted in America’s economic and political institutions, and in the consciousness of many Americans, than the horrendous homophobia that may now be somewhat receding. Yet it is also a testimony to those in the gay world who refused to be “realistic” when told that gay marriage was unthinkable. We need that same kind of unrealistic thinking to revive the necessary struggle against American racism. Meanwhile, let’s take a moment to celebrate the advances in the rights of gays and lesbians, even as we gird ourselves for future struggles! If you are willing to be part of a movement that seeks a fundamental transformation of American society toward a new bottom line of love and caring, kindness and generosity, and ethical and ecological sensitivity—a society that encourages us to transcend a narrow utilitarian attitude toward other human beings and to see them as fundamentally deserving of respect and care, and to transcend a narrow utilitarian attitude toward Nature and instead to respond with awe, wonder, and radical amazement at the grandeur and mystery of the universe—then please take this moment to join the interfaith and secular-humanist-welcoming Network of Spiritual Progressives at spiritualprogressives.org. We need your support.