The Thomas More Law Center has filed a brief in the 6th Circuit Court of Appeals in the case that struck down Michigan’s ban on same-sex marriage on behalf of the Coalition of Black Pastors, a group of African-American bigots from my home state. Most of it seems to be an expression of their outrage at being compared to gay people. From a press release they sent out:
Erin Mersino, the principal drafter of the amicus brief, assisted by Lansing attorneys William Wagner and John S. Kane, captured the Pastors’ objections: the comparison drawn by courts and by society that the homosexual push to legalize their marriages is on par with the civil right movement of Black Americans is false; marriage between one man and one women is Biblically based and a part of America’s Judeo-Christian morality and tradition, and the legal precedent used to overturn the MMA, which was approved by over 2.7 million voters, was unsound.
Said Mersino: “It has been an honor working with the coalition of pastors closely to ensure that their unique voice is heard. The coalition was upset with the notion that the voice of 2.7 million Michigan voters could be silenced by the opinion of one federal court judge. The court drew upon legal precedent which rightfully allowed interracial couples to marry, inherently raising similarities between racial equality and same-sex marriage. The coalition has made clear that they believe this comparison is offensive. ”…
Excerpts from the Law Center’s Brief:
*** “Comparing the dilemmas of same-sex couples to the centuries of discrimination faced by Black Americans is a distortion of our country’s cultural and legal history. The disgraces and unspeakable privations in our nation’s history pertaining to the civil rights of Black Americans are unmatched. No other class of individuals, including individuals who are same-sex attracted, have ever been enslaved, or lawfully viewed not as human, but as property. Same-sex attracted individuals have never lawfully been forced to attend different schools, walk on separate public sidewalks, sit at the back of the bus, drink out of separate drinking fountains, denied their right to assemble, or denied their voting rights. Id. The legal history of these disparate classifications, i.e., immutable racial discrimination and same-sex attraction, is incongruent.”…Pastor James Crowder, president of the Westside Minister Alliance, said, “Judge Friedman is sanctioning the staging of a false story. On stage are many actors who pretend that redefining traditional marriage is as valid as Blacks fighting against the carnage of chattel slavery and the humiliation of Jim Crow. Never have I been so insulted. The curtain must be pulled down on this play of disinformation.”
Congratulations, you did a brilliant job of dispatching that straw man. No one is suggesting or, to my knowledge, has ever suggested that gay people have suffered historically as much as black people have in this country. Nor is there any need to do so. Two situations do not have to be analogous in every possible way in order to be analogous in the ways that are relevant to the dispute in question. And on the subject of marriage equality and non-discrimination law, sexual orientation and race are analogous in all the legally relevant ways.
Indeed, the arguments used against striking down laws against interracial marriage are identical in nearly every way to the arguments now being used against striking down laws banning same-sex marriage. The same religious excuses are offered — “God doesn’t like it!” The same legal arguments are made — “But there’s no discrimination, gay and straight people are both equally free to marry someone of the opposite sex.” There is no coherent, principled way of opposing the use of the Equal Protection Clause to strike down state laws against same-sex marriage without making the exact same arguments that were made against the Loving v Virginia ruling.
And that is all that is required for this analogy to be accurate. The argument does not require that gay people have to have suffered in exactly the same ways that black people have suffered. That their rights are being deprived is all that matters.