Part I of this series started to look at the arguments and logic of a amici brief that was prepared by Christian conservatives in Michigan. The brief, which is meant to challenge recent legal developments conducive towards marriage equality, relies on a series of troubling “self-evident” claims about both morality and the nature of race, gender, and sexuality.

As per the brief:

A person’s sexuality and sexual preferences, however, are not their state of being, or even an immutable aspect of who they are, as race is. The truth of the matter is that it is merely activity in which they engage. And for amici, truth matters. The state has no responsibility to promote any person’s sexual proclivities, whether heterosexual, homosexual, or otherwise—and certainly is not required to accept that one’s sexual conduct preference is the same as an immutable characteristic like race. Government may not regulate people based on who they are, but it may regulate their conduct, including sexual conduct.

Now, I can think of several reasons why it might not be the best idea to compare the struggle for marriage equality to the civil rights movement. Such comparisons run the risk of hijacking a legacy such that the struggles and achievements of the Civil Rights Movement are minimized or at least somewhat skewed or misrepresented. Racist oppression and heterosexist oppression have commonalities, but they are also different in important ways, and movement participants might wish to preserve the uniqueness of the two movements by discussing their histories solely on their own terms. There might also be strategic reasons for avoiding the comparison, like if participants in the marriage equality movement feel that their rhetoric and messaging requires newer concepts and terminology. Or maybe marriage equality advocates perceive that the comparisons are a sore-spot with black conservatives (as evidenced by the brief) and decide that whatever advantage is gained by the comparison is outweighed by the backlash. Any of those considerations seem reasonable, and I’m sure there are plenty of others as well.

However, none of those reasons invalidate the recently-established legal precedent of treating racial designations and sexual or gender identities as largely similar. The trouble with this brief’s “self-evident” distinction between race and sexuality, very briefly and pointedly stated, is that if sexuality is “merely activity” rather than an immutable characteristic, then so is race. The color of a person’s skin, of course, is more-or-less “immutable” but the color of a person’s skin is not necessarily race. Race as a social category is a human creation, not some sort of biological distinction. In that sense race is “merely activity.”

The point is made even more clearly if you consider the experiences of people who claim a mixed racial identity. There are circumstances in which a mixed person might “pass” as white, and their ability to pass in a given situation depends more upon context and their self-presentation than the color of their skin, per se. When the same person can be identified both as white or as a person of color, depending on the situation and depending upon their own “activity,” then it seems obvious that the category of race is just as much a product of “mere activity” as it is a result of “immutable characteristics.”

There was of course a time when racial distinctions (and even racial inferiorities) were taken to be self-evident, but our country eventually decided on an evaluative criteria that debunked self-evident racism. We are now in the process of debunking any self-evident distinctions between gender identification and sexualities. And there is backlash; change will always bring backlash. But the fairness of our society requires that self-evident claims are actually evidenced. And if they can’t be evidenced then we need to make some new claims.

 

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