After DOMA: The Case for Full Marriage Equality

Published in: November-December 2013 issue.


THE NEXT GAY CASE that the Supreme Court hears is likely to address the constitutional adequacy of civil unions, which provide separate-but-equal accommodations to gay couples. Nevada and Hawaii are the two states where constitutional challenges to traditional marital laws are currently most advanced in the federal courts. Both states have civil union arrangements for GLBT people. At the Supreme Court’s oral arguments in California’s Prop 8 case, two liberal justices doubted that the state should be “punished” for having made the seemingly progressive move to civil unions for gays—punished by being forced to move on from civil unions to full gay marriage.

It is not clear that anything in the Court’s welcome but murky Windsor decision striking down DOMA speaks decisively to this issue, but a now largely forgotten 1950 race case, Sweatt v. Painter, shows what’s wrong with this sort of separate-but-equal thinking and points the way to full gay marriage in America. In Sweatt, the Supreme Court struck down a law school arrangement that the state of Texas had concocted in 1946 to get around the legal embarrassment of having no law school to which blacks could apply. The Court struck down the arrangement even though the separate-but-equal test for equal protection from Plessy v. Ferguson (1896) was still authoritative (Brown v. Board of Education was still four years off).

As an initial consideration in Sweatt, the High Court looked at measurable, material differences between Texas’ all-white law school and the spanking new all black school—things like numbers of professors, library books, alumni, and course offerings. And—no surprise—those conditions were not equal. But the Court went on to claim that even if those measurements were identical, that would not be sufficient to establish the equality demanded by the Constitution. The Court wrote: “What is more important [are]those qualities which are incapable of objective measurement but which make for greatness. … Such qualities, to name but a few, include reputation … position and influence … standing in the community, traditions and prestige.” These are values of social appraisal, of society’s assessment. The whites-only law school had, but the newly confected blacks-only law school lacked, “rich traditions” and the “prestige which only a history of consistently maintained excellence could command.”

So, there are values of honor, prestige, and stature that matter constitutionally and matter even more than merely countable material interests. The relevant question to determine whether two institutions are substantially equal is whether they are held socially in the same regard, with the same prestige and honor “in the community.” The law, even in its seeming neutrality, cannot be allowed to draw on or perpetuate socially perceived inequalities. And that is what the state of Texas law schools did.

Note that, while the facts of the particular case refer to blacks, the conceptual framework of the argument does not entail reference to race. So, the case’s legal schema translates with ease over to gay cases. Even if civil unions give gay men and lesbians in relationships the same bundle of legal perks, rights, obligations, and interests that marriage confers on members of different-sex relationships, society does not hold the two types of relationship in the same regard. Marriage is treated socially as a long honored, even sacred institution. But the newly minted legal institution of civil unions isn’t even in the running as a long-honored relationship, let alone a sacred one. For the longest period of the nation’s history, such relationships of couples living together were illegal cohabitations, referred to colloquially and demeaningly as mere “shacking up.”

What is key to establishing whether some legal differentiation is equitable or not is whether the two institutions legally distinguished are viewed in society’s eyes as having equal regard, estate, esteem, standing, station, stature, prestige, honor, and dignity. By this standard, separate-but-equal law schools are not substantially equal for constitutional purposes, and neither should civil unions be so viewed. But then, to an even greater degree, laws that view same-sex relationships in even lower regard than civil unions will be unconstitutional as well. Thus Sweatt v. Painter provides a simple instrument for eliminating all bans on gay marriage.


Richard D. Mohr is emeritus professor of philosophy and classics at the University of Illinois–Champaign-Urbana.