How Can the Marriage Equality Movement Reason from Race?

Reasoning from Race
Feminism, Law, and the Civil Rights Revolution
Serena Mayeri
September 8, 2011

By Serena Mayeri, a professor of law and history at the University of Pennsylvania Law School

“Gay marriage is about civil rights,” wrote one cautiously jubilant celebrant of New York’s recent decision to allow its citizens to marry their life partners, regardless of sex. In the twenty-first century United States, the term “civil rights” is resonant with cultural meaning, evoking most of all the ongoing struggle for racial justice. The movement for marriage equality is just one of many social movements that have drawn on civil rights rhetoric, strategies, and legal precedents to argue for the acceptance of previously subordinated groups as first-class citizens.

These borrowings attract mixed reviews. Opponents of same-sex marriage reject any moral equivalence between African American civil rights and gay rights. Some who are more sympathetic to gay rights worry about alienating those whose religious beliefs or memories of Jim Crow make comparisons to antigay discrimination offensive or painful. Others fear that pithy slogans such as “Gay is the New Black” trivialize both racial oppression and homophobia while implying that gayness and blackness are mutually exclusive.

In Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, I explore the intertwined movements for racial and gender equality in the heyday of feminist legal advocacy, the late 1960s and 1970s. Feminist advocates during this period regularly conscripted legal strategies developed to combat race discrimination into the service of women’s rights. But as the book shows, the relationship between race and sex, civil rights and women’s rights, was much more complicated than simple parallels could capture. Moreover, many advocates understood this complexity, invoking analogies and other forms of “reasoning from race” strategically and self-consciously.

Reasoning from race served as a coalition-building strategy as well as source of rhetorical and legal arguments. For example, the African American civil rights advocate and feminist legal strategist Pauli Murray pioneered the modern race-sex analogy as a means of bridging long-standing divides within the feminist movement over the Equal Rights Amendment (ERA), race, and labor rights. In 1962, she proposed that women’s advocates pursue a Fourteenth Amendment litigation strategy modeled on the NAACP Legal Defense Fund’s successful court campaign against racial segregation.  By the early 1970s, Murray and her allies—who now included the formidable ACLU strategist Ruth Bader Ginsburg--had used race-sex parallels, among other strategies, to great effect. They disentangled ERA proponents from unholy alliances with segregationist lawmakers, pressed for the enforcement of Title VII against sex discrimination, persuaded civil rights leaders to embrace a strategic partnership with women’s advocates, and convinced four members of the Supreme Court to treat sex as a suspect classification.

Like “race” and “sexual orientation,”  “race” and “sex” are not identical legal or social categories. But when race-sex analogies fell on hard times in the mid-1970s, it was not because of the parallels’ inherent descriptive flaws, but because of political, legal, and economic changes that made reasoning from race more perilous. A sharp economic downturn created a politics of scarcity that pitted the brand-new entity “women and minorities” against each other and against white male workers. Their opponents turned race-sex analogies against feminists and civil rights advocates, casting parallels to the civil rights revolution as alarming rather than inspirational. As race discrimination jurisprudence became increasingly conservative, reasoning from race grew less strategically appealing. And the African American women whom Pauli Murray had tried to place at the center of both civil rights and feminism often found themselves at the margins: the title of a famous black feminist anthology said it all: All the Women are White, All the Blacks are Men, But Some of Us Are Brave.

But feminists did not stand idly by while their arguments foundered. Instead, they thought creatively about the complicated interrelationship between race and sex, often using ideas developed in sex equality law to advance a capacious vision of racial justice. Ruth Bader Ginsburg, for instance, used the more flexible standards of constitutional sex equality law to defend race-based affirmative action in cases like Regents of the University of California v. Bakke.  And African American women continued to blaze new trails as lawyers, theorists, and plaintiffs. In one little known Supreme Court case (argued but dismissed as improvidently granted), 22-year-old Katie Mae Andrews challenged a Mississippi school superintendent’s ban on unmarried mothers serving as schoolteachers. A local civil rights attorney collaborated with feminist lawyers at the Center for Constitutional Rights to make innovative arguments that linked discrimination against unmarried mothers and “illegitimate” children with racial and sexual subordination, and connected reproductive freedom with sex equality. Efforts like these embodied the ideas and experiences legal theorists would later call “intersectionality.”

Whereas feminist legal theory often struggled to keep up with politics on the ground in the early years, queer theorists offered sophisticated critiques of “like race” arguments (to use Janet Halley’s phrase) long before the movement for gay equality  gained political traction. And there are many other relevant differences among (not to mention within) the civil rights, feminist, and LGBT movements. But my hope is that looking back at the history of feminist legal advocacy can help us to see “reasoning from race” and other legal and strategic arguments for full citizenship as dynamic, contingent, and context-dependent.