Equal dignity under the law.

Mohr, Richard D.

A DISTRAUGHT STUDENT slips into the office of her high school guidance counselor. The student thinks she might be a lesbian. It is dawning on her that she seems to like girls rather than boys. And someone has just called her a derogatory name. The counselor tries to console, advise--counsel--the student to the best of her ability, given available resources. She suggests that being a lesbian is not the end of the world, that she herself, for example, likes women. Buoyed by her success counseling this student and another gay male student, the counselor begins to mention her bisexuality to some of the school's faculty. In consequence, she is fired. After a decade bouncing around the courts, her case reaches the U.S. Supreme Court in 1985; but only two justices--half the number needed--even want to hear her case, which claims her rights to equal protection have been violated. And so the Court lets stand a ruling that allows Ohio to fire all its gay and lesbian school teachers on the basis of their sexual orientation alone. Two decades later, this state of legal affairs is unchanged.

This essay examines how we ought to understand the elusive concept "equal" when used in the Constitution's cryptic, if moving, promise that "no person shall be denied the equal protection of the law." It explores the moral background of the country's century-old belief that governments, both state and federal, should not be allowed to discriminate and tries to determine whether the constitutional promise of equality should be extended to include the protection of lesbians and gay men--as it currently does not. Indeed, across the whole range of law, it is on issues of equality that gays have made the least progress to date. Neither the Supreme Court nor any of the thirteen federal Circuit Courts has viewed gays as having the same levels of protections against governmental discrimination that blacks, women, and even illegal immigrant children have. (1) The same is true of state supreme courts. Not one has held that gays have the same equal protection rights held by blacks or women under their state constitutions. Even in Vermont, where its supreme court held in 1999 that the state had to give gay couples benefits identical to those of heterosexually married couples, it did not use the equal protection provision of its state constitution as the vehicle for the ruling.

WHAT IS EQUALITY?

The task here is not an easy one. For it requires answering the contested questions: What do we mean by equality anyway? What counts as discrimination? Are lesbians and gay men relevantly like other minority groups--blacks, the Irish, women, Jews, the handicapped, Mormons, and others--traditionally thought deserving of protection from governmental discrimination? And, for that matter, what is a "minority"?

I suggest that equality in a moral sense is at heart a principle that asserts individuals as having equal dignity or personhood. Rising to the level of a right, equality is the authoritative claim that a person will not be held in lesser regard--as having less worth--unless that lesser regard is warranted by something the person has (or has not) done. A person may be held in lower regard, even contempt, because of some action he performs (say, lying, thieving, murdering) or because of his failure to perform some duty (say, neglecting to pay his taxes or feed his kids). Such acts and omissions permit and warrant censure and punishment. But a person may not legitimately be held in lower regard because of some status he or she has, some group-membership independent of any action that establishes the person as a member of the group.

Equality at its core does not merely hold that one should treat similar cases similarly, that people should have equal access to whatever (other) rights there are. This merely formal principle is a component of procedural justice, but it does not exhaust or even capture the core of equality. Indeed if this were all equality is, equality would not add anything to whatever other rights there are, for all it would entail is that a right or a law should be applied consistently in its own terms--whatever those terms are. If its terms draw distinctions between groups, then so would its consistent application.

As odd as it may sound at first hearing, equality also cannot only or essentially mean equality of opportunity, though talk of "equality of opportunity" is quite entrenched in America's folk rhetoric of justice and even in its institutional titles. The chief federal agency for the enforcement of the 1964 Civil Rights Act, for example, is called the Equal Employment Opportunity Commission.

Equality means something more. Consider the following paradigmatic racist joke taken from Blanche Knott's Truly Tasteless Jokes, II: "What do you call a black millionaire physicist who's just won the Nobel Prize? Answer: Nigger!" Here the incongruity which is the basis of the joke's supposed fun is that while the joke's subject through his actions has achieved the pinnacle of socially measured success, still he is viewed as a lesser, even naturally debased, being. The joke turns on the presumed (white) listener's assumption that the person's race makes him in some crucial sense unequal--assigns him a status, a grade of existence, immeasurably lower than the average person, the listener, even though his accomplishments are infinitely higher.

The joke is revelatory for understanding equality. First, the structure of the joke's humiliating fun shows that equality cannot chiefly mean equality of opportunity. The person in the joke has availed himself of and realized opportunity as fully as anyone could. The joke's butt could not launch a suit against the joke's teller, or anyone else, claiming that he had been denied access to some right, some freedom, some opportunity--for he has it all. Rather the joke presumes that true equality is a consequence of one's status and has nothing to do with one's actions. In the joke's moral system, which is to say America's popular morality, this person could never be equal no matter what he did.

Second, the joke shows that the lesser status which inequality assigns its object is a devolution away from the standard of full personhood. Here race eliminates the subject of the joke from being viewed fully as a person--that is, as an individual with ends of his own, the ability to revise those ends, and the ability to respect others as having ends of their own. The subject is viewed rather as at best an object, tool, or thing. In the social dynamics of this joke, the black person is merely an instrument for others' entertainment, like a porpoise at Sea World.

This same moral vision was espoused by the Supreme Court in the landmark Dred Scott decision of 1856 when it upheld the moral acceptability of slavery, claiming that blacks are an "unfortunate race ... [correctly] regarded as being of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; that the Negro might justly and lawfully be reduced to slavery for his own benefit." Although slavery is, like a tax too high, an unjust restriction on liberty, the chief moral problem with slavery is that it is a violation of equality. An injury, a harm, or a restriction to one's freedom may interrupt one's ability to carry out one's life plan, but an assault on equality, viewed as individual dignity, presumes that one is not even the sort of thing to deserve the status of having a life plan in the first place. To be treated inequitably is to be held in morally lesser regard independently of what one has done. It is to suffer degradation and humiliation.

Now admittedly, dignity itself is an elusive notion, but it can be placed in a conceptual network that helps clarify its nature. Consider what counts as a harm or offense against dignity. The common phrase "adding insult to injury" affords an intuitive grasp of a distinction between two types of offense. An insult is an offense against dignity, while an injury is something that reduces one's happiness, denies one some benefit, wealth, power, or useful possession, or generally reduces one's material circumstances in the world.

This distinction between dignity and well-being or happiness is also reflected in the different moral emotions we feel toward those whose well-being or dignity is of interest to us. The moral emotion that has happiness and harm as its proper objects is sympathetic concern--sympathetic joy or sympathetic sorrow. But we feel sympathetic concern, even love, for things which are not full persons, for example, pets. In contrast, the appropriate moral feeling directed to another's dignity is not sympathy, but respect. If our regard for others does not include respect, we fail to treat them as persons, and treat them instead as lesser beings.

Insults are a graver form of evil than injuries, for they attack persons as persons--in two ways. First, by focusing importance on largely irrelevant characteristics, insults treat the insulted as though their moral agency counts for nothing. Thus raw invectives like "nigger" and "faggot" violate their targets' right to equal respect in that the insulted person's ability to formulate and carry out a plan of life--to realize his desires, plans, aspirations, and sense of the sacred--is not considered worthy of social care and concern on a par with that of others.

Second, by holding a person in morally diminished regard, insults also show disrespect for persons by treating those insulted as though they were not really full moral agents to begin with. In this way, metaphor-inflected invective (say, calling a black adult male "boy" or "buck" or a woman "babe," "girl," "bitch," or "cow") demotes the insulted person to the level of children or non-human animals, creatures who are not held responsible for their actions, who are not viewed as creators of their own destinies, and who require paternalistic intervention for their own good.

THE LANGUAGE OF INSULT

The ill-treatment of gay men and lesbians chiefly takes the form of denials of equality. To be sure, lesbians and gay men are subject to violations of freedom and inflictions of severe harms. Still, these violations and inflictions are usually perpetrated with an eye to their serving as vehicles for the denial of equality. Being fired or being physically attacked because one is gay is a harm, but even more so it is a degradation. In cracking the skull of one gay man, the queer basher is looking to insult all gay men, by framing all gay men as being death-worthy for who they are. The particular victim is a standin for the whole group. Gay oppression is chiefly the denial of gay dignity.

A look in some detail at language will perhaps provide the most telling complex of examples to show that gays in America are indeed viewed--and, in turn, treated inequitably--as a group degraded independently of any behavior that makes one a member of the group.

Surprisingly, even non-slang terms used to denote gay men and lesbians preponderantly indicate that society does not think of homosexuals as defined by certain kinds of acts. Dictionaries' tracking of common usage and their definitions of "homosexual" reveal much, especially ones from the era before the gay rights movement made the term "homosexual" a contested one. The Oxford English Dictionary (1964) defines "homosexual" simply and solely as "having a sexual propensity for persons of one's own sex." Similarly Webster's New Twentieth Century (1952) has for the adjective "characterized by sexual inclination toward the same sex," and for the noun "one whose emotions, feelings, and desires are concerned with the individual's own sex rather than with the opposite sex." No mention of actions is made here. Actions are not necessary for the label to apply to a person. Nor, importantly, are actions here even sufficient for the label to apply. For one can, and quite often does, will and perform actions without having a desire, inclination, propensity, or (positive) feeling for the actions performed--carrying out arduous tasks and undergoing major surgery are actions of this sort.

Anti-gay slurs in American English also target a person's status rather than behavior. With the apparent exception of "cocksucker," no widespread anti-gay slur gives any indication that its censure is directed at sex acts rather than despised social status. Group-directed slurs (dyke, queer, fag) place lesbians and gay men in a significant social category along with blacks (nigger, shine, shitskin), other racial groups (chink), women (cunt, gash), various ethnic groups (wop, dago, gook, jap, JAP, mick, kike), religious groups (kike, papist, christer), native peoples (redskin, injun, eskimo), non-native peoples (kike, gypsy), and the physically challenged (crip, gimp, veg, vegetable, crispy critter). It does not place them in the same category as liars, hypocrites, murderers, and thieves--those who commit immoral and criminal actions and yet for whom culture in no case has coined group-based invectives. This schema of slurs strongly suggests that gay men and lesbians are held to be immoral because they are hated, rather than hated because they are immoral.

Many slang pejoratives explicitly denote homosexual status rather than homosexual acts. The whole host of putdowns of gay men nominally based on charges of effeminacy are of this sort. They put down gay men not as performers of sodomy but as having a low status derivative from the low status in which society holds women, and additionally from the sense that they have betrayed their socially assigned gender-status. To be sure, betrayal is a willful action, but here it is not the willfulness of being a "queen" that is the brunt of slurs like "sissy" and "nelly." It is the challenge which the queen's status presents to socially-managed gender distinctions that is condemned. Hence the condemnation of will is inextricably bound up with the protection of status--the queen's very existence is a challenge to the status of "real manhood." Action has little to do with the perceived threat.

Another large set of slurs explicitly denotes status in their metaphoric vehicles, and thus suggest that their target--male homosexuality--is also being viewed as a status. These slurs include: pansy, panz, fruit, fruitcake, and finocchio (Italian for fennel and the name of a decades-old Sausalito transvestite bar). These slurs, which have no lesbian counterparts, obviously make no reference to behavior of any kind. All of them derive from the cosmic order "vegetable" and vegetables don't do anything.

These slurs suggest that America's mind believes in a Great Chain of Moral Being. Straight men--fully real persons--constitute the highest tier of all the gradations of human moral worth. Of sublunary beings, they are nearest the ascending heavenly hierarchy of saints, cherubim, seraphim, archangels, and gods. Descending down the Chain from real men, we arrive next at women, whose nature is essentially, abidingly, and pervasively viewed in slang as animal. Women are chiefly referred to in slurs by designations of animal species (bitch, beaver, cow, fish, vixen, pussy, shrew), by terms that assimilate women to immature animals and children (chick, doll, babe, baby, girl), or which reduce women to the body parts by which their animality differs from that of males (cunt, gash, beaver, pussy, bag, muff, rack). Note that there are no corresponding derogatory terms for males in contemporary culture. The derogatory terms that have male genitalia as their metaphoric vehicles--prick, dick, dickhead--are not in fact putdowns of men as men, but are simply equivalents to "bozo," "dolt," or "jerk." Real men are unassailable. Their antipode down at the bottom of the human heap is vegetable existence--pansies, fruits, and the physically challenged, who, like gay men, also are typically denoted and demoted with vegetative slurs. The lowly placement of gay men on a scale which contains women, men, and the congenitally deformed shows that the social treatment of gay men depends not upon what they do, but upon some perceived degenerate status.

Quite generally then, it would appear that when animosity against some group reaches a level where the group is the subject of highly developed, sharply derisive slang and the butt of vicious jokes, then the group's members are being held accountable not for what they do, but for what they are. At present society chooses to treat gay men and lesbians not as agents of their own destiny, but simply as having a degenerate status for which questions of action and accountability are irrelevant.

SOCIAL FORMS THAT DEGRADE GAYS

In addition to the linguistic record, much more and diverse evidence shows that in lopsided preponderance society views lesbians and gay men first and foremost as morally lesser beings. In the 1980's three major institutions--the military, religion, and medicine--weighed in to affirm the moral model that classifies lesbians and gay men by status rather than actions.

The military: According to the formulations developed in the early 1980's to carry out the military's ban on homosexuals, it turns out that engaging in homosexual behavior is neither a necessary nor a sufficient condition for being considered a homosexual and treated accordingly. In these formulations, homosexual desire (as expressed, say, in a diary entry) is, even in the absence of any behavior, sufficient to have one kicked out of the Armed Forces for being homosexual; yet if a member of the Armed Forces is caught actually performing homosexual acts, he is permitted to plead successfully that these do not indicate his true nature and that "such conduct is a departure from the member's usual and customary behavior." One may claim, "Just skylarking," or "Boy, was I drunk last night," and be retained. Clearly, here it is one's status as a homosexual--a status that can float completely separate from any behavior--that is the brunt of military policy.

Religion: In 1986, the Catholic Church, in a major ideological shift, branded as "an objective moral disorder" the mere status of being a homosexual, even when congenitally fixed and unaccompanied by any homosexual behavior. Previously such status had been viewed as morally neutral and only homosexual acts--sins--were morally censured. Both the Vatican letter stating this shift, a 1992 Vatican letter interpreting it as warranting employment discrimination against lesbian and gay men, and a Vatican letter of 2003 saying that the mere presence of gay people constitutes violence against children, all seemed, by their wording and the way they framed issues, to be a specific response to the development of lesbian and gay politics in the United States. (2) Political stirring produced ideological retrenchment, in a way, though, that tipped religion's hand. The Catholic Church's conception of gay people is a species of racism.

Medicine: On April 15, 1985, in Atlanta, during the keynote address for the first International Conference on AIDS, President Reagan's Secretary of Health and Human Services, Margaret Heckler, in a burst of good intentions gone painfully awry, held: "We must conquer AIDS before it affects the heterosexual population ... the general population. We have a very strong public interest in stopping AIDS before it spreads outside the risk groups, before it becomes an overwhelming problem." The determinate prospect of a million or so dead gay men was not seen to be a problem for the Reagan administration. Now, in America the value of a person's life is not normally pegged by reference to the means by which the person comes to have diseases. For instance, the life of a CEO who suffers a heart attack from years of gluttony is not thought to be worth less than that of a person who suffers a heart attack under torture. So that even if one drew a moral distinction between the HIV-conveying sex acts of heterosexuals and those of homosexuals, still this would not ground a further distinction between lives to be saved and lives to be junked. So it is not the moral assessment of actions which grounds Heckler's distinction; rather she holds heterosexual status as more worthy of care and concern than gay men's status. Gays, here, are lesser beings; their agency doesn't matter.

The social understanding of homosexuality essentially as a degenerate status rather than as a form of censurable behavior was given its most clear and honest formulation in the 20th century by Heinrich Himmler, who, in a speech to his SS generals, explained that the medieval German practice of drowning male homosexuals in bogs "was no punishment, merely the extermination of an abnormal life. It had to be removed just as we [now] pull up stinging nettles, toss them on a heap, and burn them."

DEMOCRATIC PRACTICES

On this view, a minority, for the purposes of law, will simply be any group whose members are held in morally lesser regard independently of what they do. When a group is socially presumed to be unworthy, it can hardly be expected to be treated equally in democratic decision making. Quite apart from any history of intentional discrimination against gay men and lesbians, the combination of widespread background presumptions that gays are degraded beings and the existence of anti-gay stereotypes that operate as unacknowledged social lenses in policy making ensures that democratic processes cannot be relied upon to ensure fair and impartial treatment of gay and lesbian concerns. Indeed the effects of false presumptions and stereotypes in society's judgment-making undercut the very grounds for affirming representational democracy as a form of government. When these presumptions and stereotypes are rife in culture, representative democracy cannot justify its policies as being the product of rational deliberation. For reasons of the coherence of democratic theory, gays and lesbians ought to be given the same equal protection rights against governmental discrimination which the courts have given to blacks and women.

To put it bluntly: If the Supreme Court, which is structurally positioned to be above the fray of politics, can admit in 2003 that it itself has been unable to give gay men and lesbians a fair shake--as it admits in Lawrence v. Texas's recantation of Bowers v. Hardwick (1986)--then it would be irrational for the Court to assume that the fray of politics itself can give gay men and lesbians a fair shake. If the Court's redemptive reading of itself in Lawrence is not to ring as just so much hollow self-congratulations, the Court must now begin to move aggressively to address the remaining areas of law where distinctions are drawn with reference to sexual orientation.

How, then, are we to assess whether specific laws are inequitable? A law will be a violation of equality if it draws upon or in its effects enhances the view that some group is held in morally lesser regard independently of any action that puts a member of the group in the group. A law does not violate equality simply by virtue of its distributing some benefit or opportunity differently between two groups. As important: nor will the law necessarily be an equitable treatment by virtue of its distributing the same benefits and opportunities to different groups.

A differential distribution violates equality only if the distribution draws on or enhances society's perception that one of the groups is worthy of less moral regard than the other. So, for example, an affirmative action program which gives some benefits and opportunities to blacks which it does not give to whites would be inequitable only if the differential distribution would be socially read as deriving from or reinforcing social structures that hold white people in lesser moral regard than blacks--an impossibility in current American culture.

On the other hand, an identical distribution will be inequitable if it socially serves as a means of insulting, humiliating or degrading one of the groups. Such is the case in most separate-but-equal schemes.

To determine whether a distribution insults or degrades a group, one has to look at the social context of the distribution. In some societies, a flicked middle-finger might be a serious insult, in others it might be a meaningless gesture, in still others it might be a sign of greeting. More specifically, whether the flicked finger is an insult depends on how the culture reads the symbolism of the gesture. It does not turn on whether the target of the gesture reads it as an insult. Indeed the target need not even know that he has been insulted--he can be insulted nonetheless. Thus we say that a person can be insulted behind her back or even beyond the grave.

The Supreme Court got this all backwards in the 1896 case Plessy v. Ferguson with which "separate but equal" was established as the law of land for over half a century. The Court was wrong, almost certainly disingenuous, when it claimed that if blacks were insulted by being forced to sit in racially segregated railway coaches, the insult was the result of black's sensitivities, not of the Louisiana law mandating the segregation. The Louisiana legislature knew how the segregation would be socially read and the law was passed for that very reason. This segregation, like anti-miscegenation laws, gave blacks and whites the same opportunities--blacks could not marry whites or sit in their coaches, whites could not marry blacks or sit in their coaches--but such identical treatments were inequitable because, socially viewed, the identical distributions were still means of society viewing blacks in lower social regard than whites. So the Supreme Court correctly ruled in 1967 in Loving v. Virginia, when it finally declared anti-miscegenation laws unconstitutional violations of equality.

WHY "CIVIL UNION" DOESN'T PASS MUSTER

Now consider states like Vermont which have established licensing schemes which give homosexual couples exactly the same benefits and opportunities as they give heterosexual couples--except for the name "marriage" on the licenses issued to secure the rights and benefits. The licenses for gay and lesbian couples instead have "civil union" written on them. Is this licensing scheme an equitable treatment of gay men and lesbians?

It would not be an equitable treatment of lesbians and gay men, even if it were to give more privileges and benefits to them than to heterosexuals, just as it would still be inequitable to require blacks to sit at the back of a bus even if the bus had a "rear exit only" requirement that gave blacks the opportunity to exit the bus out the back door first. The reason is that the culture reads the ritual of placing blacks at the back of the bus as degrading to blacks.

So too, reserving the sacred sign "marriage" for heterosexuals when homosexuals are offered separate-but-equal civil unions, serves--and only serves--to degrade gay men and lesbians by denying them one of the chief social forms by access to which America marks out membership in full humanity. It is not just a word that is at stake, it is a highly symbolic civic ritual that civil union schemes deny gay men and lesbians. And the more politicians of all stripes call the institution of marriage itself sacred, rather than the love within a marriage or the couple's sacred valuing of their relationship, the more inequitable the separate-but-equal scheme becomes.

In December 2003, the Massachusetts legislature asked the state's highest court whether a civil-union arrangement that gave lesbian and gay couples all the rights and benefits of marriage, only just not the name "marriage," would meet the standard for equal treatment laid out in the court's November 2003 decision giving gay and lesbian couples the right to marry. By a four-to-three vote the Court answered, "No." (3) To the bewilderment of the dissenting judges, the Court clarified that, as far as equality was concerned, the civil-union scheme was a more inequitable treatment of gay and lesbian couples than the state's past refusals to grant them marriage licenses, despite all the goodies that come along with civil-union status, goodies which lesbian and gay couples did not have under the state's marriage laws. The reason: The state's past refusal to give marriage licenses to gay and lesbian couples was based on a statute that, when it was drawn into Massachusetts law from the English common law in 1810, was not established with lesbians and gay men in mind. The Massachusetts marriage law did not intentionally draw distinctions on the basis of sexual orientation. By contrast, the civil-union scheme was intentionally drawn to distinguish heterosexuals from gays, and since all the rights and obligations of unions and marriages would be the same under the scheme, the distinction was wholly drawn to differentiate gays from heterosexuals. The differentiation itself is one thick with social significance: "The [civil unions] bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex 'spouses' only a status that is specially recognized in society and has significant social and other advantages. The Massachusetts Constitution does not permit such invidious discrimination, no matter how well intended."

HETEROSEXUAL SUPREMACY

All this is true, but one could press even farther. The law (it will be remembered) claims--and so does any society that accepts the law's claim--that marriage is the only legally acknowledged relation between the sexes. Through marriage the law creates the legal relation between the sexes; the law, in short, creates heterosexuality, legally speaking. Without legal marriage the sexes would be as related to each other at law as mangos and tangos. Marriage more generally--religious, social, as well as legal marriage--needs to be understood as an institution that creates a social status, in particular a heterosexual status--and then ratifies that status. Marriage--the legal and social ritual--doesn't lay value on something that already exists. It draws into being a social form, even as it ratifies that very form.

Marriage, in short, is an initiation ritual. A typical initiation ritual takes a male and turns him into a Man. Biology and non-ritualistic behavior could not do that. So too biology and non-ritualistic behavior could not turn a person into a heterosexual. Indeed Don Juan, Casanova, and Lothario, those frisky male seducers of endlessly numerous ladies, are now taken as cultural symbols for homosexual denial rather than heterosexual affirmation. Not biology, not behavior, but marital status is the social essence of heterosexuality. And the required ritual of marriage, getting wed--the legally, socially, religiously required ceremony of solemnization--is the initiation rite that both confers that status and endows it with value.

So, the social and political stakes in marriage turn out to be much higher than even the Massachusetts court realized. It is not just any old non-material benefit that gays and lesbians are being denied by civil-union schemes, important as such non-material benefit may be, say, access in a theater to the even numbered seats, which are thought to be particularly dear to the gods, even though the view of the stage is just as good from the odd numbered seats. Rather, in civil-union schemes, all of the sanctity and holiness associated with heterosexual status per se as created and ratified by the ritualistic solemnizing of marriages would be denied gays and lesbians by law. And more even than that, as intentionally and wholly designed to symbolically differentiate heterosexuals from gays around the very institution by which in the eyes of the law and society heterosexuality is established, the separate-but-equal civil-union scheme flags to society that to let lesbians and gays marry would be not just to besmirch the sanctity of heterosexuality, but more so to destroy Heterosexuality itself. Analogously, if a colonial ruler imposed a new order of equality mandating that henceforth both males and females must go through the initiation rituals of Manhood, then for those upon whom the new order is imposed, the new order would destroy Manhood, would destroy what it is to be a Man.

Civil-union schemes, then, are instruments in the institutionalization of Heterosexual Supremacy, just as, in the racist's mind, letting a black man marry a white woman would not just besmirch Whiteness, but would also destroy the very ritual, pureblood marriage, by which Caucasians are initiated into Whiteness, are made White, and so further would destroy Whiteness itself, what it means to be White. The parallels here between gays' justice and blacks' is more uncanny than even most lesbian and gay activists realize. In 1967, when the Supreme Court ruled anti-miscegenation laws unconstitutional violations of equality, it did so on the ground that such laws were "measures designed to maintain White Supremacy." A future Court should declare civilunion schemes violations of equality on the ground that they are measures designed to create and maintain Heterosexual Supremacy.

It goes almost without saying that the enormous political resistance to gay marriage lies in the masses' conception of themselves as heterosexual. If gays could get married, heterosexuals would no longer be Heterosexuals. They would just be people. Horrors!

NOTES

1. Palmore v. Sidoti, 466 U.S. 429 (1984) (blacks); Craig v. Boren, 429 U.S. 190 (1976) (women), Plyler v. Doe, 457 U.S. 202 (1982) (illegal immigrant children).

2. Congregation for the Doctrine of the Faith, "Declaration Persona humana" (December 29, 1975), "Letter on the Pastoral Care of Homosexual Persons" (October 1, 1986). "Some Considerations concerning the Response to Legislative Proposals on the Non-discrimination of Homosexual Persons (July 24, 1992), "Considerations regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons" (July 31, 2003).

3. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003); In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004).

Richard Mohr is Professor of Philosophy at the University of Illinois-Urbana and author of The Long Arc of Justice: Lesbian and Gay Marriage, Equality, and Rights (Columbia University Press, January 2005), from which this essay is excerpted.