Bathrooms v. Fountains, or, when is separate equal?

Previously, I made the argument that the main issue in Proposition 8 was whether "marriage" was used to describe same-sex unions. I argued that the purpose of reserving the word marriage for opposite-sex couples was to signal, by law, that the state views same-sex unions as less than opposite-sex unions. Some have questioned my argument, saying that just because domestic partnerships and marriage differed in name, it did not follow that one was better than the other. They were right; my argument is not self-evident. Let me explain my point.

Let's start with a premise: The purpose of proposition is symbolic segregation. Under California law, the legal union of an opposite-sex couple is marriage.¹ The union of a same-sex couple is called a domestic partnership, regardless of the fact that the same rights and responsibilities adhere to a domestic partnership as a marriage. The difference is a word; and therefore, the only function of the difference is communicative: the state is trying to communicate something by calling one union by one name and one union by another name.

Symbolic segregation has a long history in the United States when it comes to race. Jim Crow laws mandated that Blacks and Whites use separate drinking fountains, sit in separate railroad cars, and go to separate schools. This practice was held to be Constitutional by the U.S. Supreme Court in Plessy v. Ferguson.² In this case, the Court held that laws that mandate separate accommodations are Constitutional as long as they are substantively equal. The Court reasoned that civil and political equality were satisfied by substantively equal accommodations. The only reason to declare segregation unconstitutional would be to force social equality, an interest that the Court ruled that the Constitution did not protect and that law was powerless to enforce.

In defending the Separate but Equal Doctrine, the Court made much the same argument as some people make today: separation does not imply inferiority:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.³

Of course, Separate but Equal was struck down in Brown v. Board of Education.⁴ The Court held in that case that separate educational facilities are inherently unequal. In making that decision, the Court analyzed the effect that the segregation has on the people who were segregated:

To separate [black schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone . . . . Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.⁵

Of course, not all segregation is invidious. Separate restrooms for men and women is a type of segregation, yet one that few would argue implies the inferiority of either women or men. The question then is whether domestic partnerships are more like water fountains or bathrooms.

The first factor to consider in analyzing whether segregation implies inferiority is whether there is a legitimate purpose to the segregation for both segregated groups. Separate bathrooms protects privacy interests and safety, both important concerns. Single-sex education also performs a legitimate educational function. Jim Crow laws, on the other hand, did not validate any governmental interest, and to the extent that it benefited one group, it was at the expense of the other group. In the case of domestic partnerships, while marriage is a legitimate state interest, it is not at all clear why excluding same-sex couples from the word marriage while giving them the rights and responsibilities of marriage validates some important governmental interest. Also, any benefit realized by straight couples comes at the expense of gay couples.

Second, whether a separation implies inferiority can be informed by the reciprocity of the separation. With bathrooms, it is expected that neither sex will enter the accommodations of the other sex's restroom. The reciprocity is equal. This was not so in Jim Crow. Justice Harlan, dissenting in Plessy, explains:

It as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary.⁶

California law implies that domestic partnerships are water fountain-esque. Marriage is available for all straight couples and no gay couples. Domestic partnerships are available to all gay couples and straight couples when one party is over 62.⁷ There is no push to keep straights out of domestic partnerships; Prop. 8 was about keeping gays out of marriage.

Finally, it's worth asking whether marriage and domestic partnerships could ever be equal. While the two terms may mean the same thing legally, marriage is a sociological institution with real cultural meaning. Domestic partnerships are a sterile legal instrument that does not convey any social status. Think of it in these terms:

Yesterday I called a woman's spouse her boyfriend. She says, correcting me, "He’s my husband." "Oh," I say, "I no longer recognize marriage." The impact is obvious. I tried it on a man who has been in a relationship for years, "How's your longtime companion, Jill?" "She’s my wife!" "Yeah, well, my beliefs don’t recognize marriage."

Fun. And instant, eyebrow-raising recognition. Suddenly the majority gets to feel what the minority feels. In a moment they feel what it's like to have their relationship downgraded, and to have a much taken-for-granted right called into question because of another's beliefs.

Just replace the words husband, wife, spouse, or fiancé with boyfriend, girlfriend, special friend, or longtime companion. There is a reason we needed stronger words for more serious relationships. We know it; now they can see it.

While it is not self-evident that reserving the word marriage for straight couples implied that gay couples were inferior, the evidence shows that the general intent of this law is to send a message of exclusivity that has no legal function, is not reciprocal, and has deep cultural meaning. Given this evidence, I would be hard pressed to say that separate was equal in this context.

1. Cal. Fam. C. § 297.5.

2. 163 U.S. 537 (1896).

3. Id. at 551.

4. 347 U.S. 483 (1954).

5. Id. at 494.

6. Plessy, 163 U.S. at 556-57.

7. Cal. Fam. Code § 297(b).