Balkinization  

Tuesday, August 10, 2010

Same Sex Marriage and Brown v. Board of Education

Martha Minow

Because Brown v Board of Education made "separate but equal" unconstitutional and inadequate, it's tempting to use the phrase to challenge domestic partnerships in states that ban same-sex marriage. Calling it "separate but equal status" for intimate partners is a way of saying it is an unacceptable second best.

Yet in some ways, it is odd to apply the "separate but equal" locution here where integration--mixing of people in one setting--is not the goal; organizing the official recognition for intimate partnerships is.

Nonetheless, in other ways, the invocation of Brown v. Board is just right: redressing status differentials enforced by exclusion can best be accomplished through inclusion. Where the symbolic communication of status is at issue, even starting from scratch, it is difficult to ensure equal status and regard for parallel distinct institutions. Where we are not starting from scratch but dealing with an historic practice--marriage, whose origins reach back too early in human history even to name a starting date--the creation of a distinct alternative and refusal of access to the long-established rite carries a less-than-equal message. So did the after-thought creation of a separate law school for black students in the shadow of the long established all-white University of Texas Law School; so did separate elementary schools for black students.

Are there any circumstances where separate can be equal? Gender-based separate schools do come to mind, and I will explore that topic in my next post.

Martha Minow is Dean and Jeremiah Smith, Jr. Professor of Law, Harvard Law School. Her most recent book is In Brown's Wake: Legacies of America's Educational Landmark (Oxford University Press 2010)

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