Marriage Equality and Postracialism


When California’s Proposition 8 (Prop. 8) eliminated the right to marry a person of the same sex, it aggravated a fissure between the black community and the gay community. Though Prop. 8 had nothing to do with race on the surface, the controversy that followed its passage was charged with racial blame. This Article uses the Prop. 8 controversy, including the ensuing Perry litigation challenging the law, as a window into relations between the black and gay communities. Although the marriage equality movement bills itself as a descendant of the black civil rights movement, it often treats its forefather as dead: The political rhetoric and legal arguments of the gay rights movement routinely embrace postracialism, the notion that American society has moved beyond racial difference and hierarchy. Such arguments imply that the struggle for racial justice is over, with gays supplanting blacks as the paradigmatic stigmatized minority. In the words of The Advocate, a leading Lesbian Gay Bisexual Transgender (LGBT) periodical, “Gay Is the New Black.”

This is the first Article to identify the postracial narratives at the heart of marriage equality argumentation—in the media, on the streets, and in the courts. I show that such claims reflect an oppression Olympics, undermine black-gay relations, and are not dictated by constitutional precedent. Moreover, such claims may inadvertently constrict equality for both groups, marking the end of civil rights for both the black and LGBT communities. I urge the marriage equality movement to attend to race carefully, taking account of the history of the Supreme Court’s application of strict scrutiny to race and the ongoing subordination afflicting the black community decades after securing formal equality. This analysis casts doubt on whether the LGBT community should aspire to be “the new black.” Attending to the trajectory of black claims for civil rights could lead marriage equality advocates to create doctrinal space for remedial efforts necessary to transform formal equality into equality in fact.

About the Author

Professor of Law, UC Berkeley School of Law.

By uclalaw