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Gay Rights: Separate but Equal?

by Stephen A. Allen on Jul 8, 2003

When the Supreme Court ruled recently in Lawrence v. Texas that anti-sodomy laws were unconstitutional, gay rights activists hailed the decision as a giant leap forward for their cause. Both activists and news commentators have compared this ruling to Brown v. Board of Education in its potential impact. But is this a valid comparison?

The Brown ruling of 1954 was one of the truly great Supreme Court decisions of the last century. In it, the justices held that the equal protection clause of the 14th Amendment applied to blacks as well as whites. Their decision overturned the 1896 Supreme Court ruling in Plessy v. Ferguson that said the Constitution allowed for segregation. The Plessy case created the doctrine of “separate but equal” accommodations for blacks and whites.

By the time of the Brown decision, it was obvious that separate accommodations for blacks were hardly equal to those of whites. The Supreme Court in Brown went beyond simply acknowledging that existing separate accommodations were unequal and ruled that separate treatment under the law is inherently unconstitutional.

So did the Supreme Court render a similar decision in Lawrence v. Texas, ruling that unequal treatment of gays is unconstitutional? The justices were asked to dismiss the sodomy convictions of John Lawrence and Tyrone Garner on the basis of equal protection, but they chose to rule on the grounds that the two men’s right to privacy had been violated. While this ruling was good news for those who support the right to privacy, such as abortion rights activists, the decision was not a complete success for gays.

In basing their ruling on the right to privacy rather than equal protection, the Supreme Court created a precedent that is more akin to the Plessy decision than to its ruling in Brown v. Board of Education. The Lawrence decision does not give gays all of the same rights as straight Americans, and it theoretically leaves the door open to certain types of discrimination.

This is actually a step backward for the Supreme Court. In 1996, in Romer v. Evans, the justices held that certain types of discrimination against gays — in housing and employment, for example — violate the equal protection clause. While the court had the opportunity in Lawrence v. Texas to extend that protection to sexual matters, the justices chose not to do so.

Lawrence v. Texas puts gays into a position like that created for blacks by Plessy v. Ferguson. While they are treated separately, they are by no means considered equals in all cases. In several states, gays and lesbians are not allowed to adopt children, and homosexuality has been successfully used as grounds to terminate biological parental rights. None of the fifty states recognizes gay marriages, although that may change in Massachusetts later this year. Vermont did create the category of “civil union,” which gives gay couples who wish to have their relationship officially recognized the same legal rights as married couples. But a civil union is not the same thing as a gay marriage: Vermont’s law is clearly a case of “separate but equal” treatment.

Nonetheless, things certainly are looking up for gay rights in the United States. Because it did not grant gays full equal protection, Lawrence v. Texas may not have gone as far as it could have, but it is still a significant advance. The fact that Canada and Great Britain may soon legalize gay marriage puts a certain amount of moral pressure on the United States to do the same. Even Wal-Mart, which is not known for advancing liberal causes, recently added protection for gays and lesbians to the company’s anti-discrimination policies.

It took 58 years for the Supreme Court to advance from Plessy v. Ferguson’s “separate but equal” doctrine to the equal protection granted by Brown v. Board of Education. The question is, will it take that long again?


Stephen A. Allen is a doctoral candidate in the Medieval Institute at the University of Notre Dame and a writer for the History News Service.

[The Medieval Institute, University of Notre Dame, Notre Dame, IN 46556-5692. e-mail: Stephen.A.Allen2@nd.edu]